AS-IS. If this Agreement is not terminated pursuant to the terms of Section 4.3.2 hereof, except for the Seller's Warranties (as hereinafter defined), the Company will be deemed to have had the opportunity to have: (a) examined and inspected the Property and Defeasance Security and Company shall be deemed to know and be satisfied with the physical condition, quality, quantity and state of repair of the Property and Defeasance Security in all respects (including, without limitation, the compliance of the Real Property with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any comparable local or state laws (collectively, the “ADA”); (b) reviewed the Entity Documents and all instruments, records and documents which Company deems appropriate or advisable to review in connection with this transaction, including, but not by way of limitation, any and all documentation relating to the Interests, any and all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees relating to the Real Property or the business conducted thereon, and Company shall be deemed to have determined that the same and the information and data contained therein and evidenced thereby are satisfactory to Company; and (c) at its own cost and expense, made its own independent investigation respecting the Property, the Defeasance Security, the Interests and all other aspects of this transaction, and shall have relied thereon and on the advice of its consultants in entering into this Agreement, and Company shall be deemed to have determined that the same are satisfactory to Company. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR SELLER’S REPRESENTATIONS AND WARRANTIES IN SECTION 11.1 OF THIS AGREEMENT AND IN ANY INSTRUMENTS DELIVERED BY SELLER IN CONNECTION WITH THE CLOSING AND SELLER’S COVENANTS HEREIN AND THEREIN (“SELLER’S WARRANTIES”), THIS SALE IS MADE AND WILL BE MADE WITHOUT REPRESENTATION, COVENANT, OR WARRANTY OF ANY KIND (WHETHER EXPRESS, IMPLIED, OR, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STATUTORY) BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, COMPANY AGREES TO ACCEPT THE INTERESTS AND THE OWNER’S INTEREST IN THE PROPERTY AND DEFEASANCE SECURITY ON AN “AS IS” AND “WHERE IS” BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION OR WARRANTY, ALL OF WHICH SELLER HEREBY DISCLAIMS, EXCEPT FOR SELLER’S WARRANTIES. EXCEPT FOR SELLER’S WARRANTIES, NO WARRANTY OR REPRESENTATION IS MADE BY SELLER AS TO FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, QUALITY, CONDITION, OPERATION OR INCOME, COMPLIANCE WITH DRAWINGS OR SPECIFICATIONS, ABSENCE OF DEFECTS, ABSENCE OF HAZARDOUS OR TOXIC SUBSTANCES, ABSENCE OF FAULTS, FLOODING, OR COMPLIANCE WITH LAWS AND REGULATIONS INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO HEALTH, SAFETY, AND THE ENVIRONMENT (INCLUDING, WITHOUT LIMITATION, THE ADA). COMPANY ACKNOWLEDGES THAT COMPANY HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS OWN INVESTIGATION OF THE INTERESTS, THE OWNERS AND THE ENTITY DOCUMENTS AND THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND DEFEASANCE SECURITY AND THAT COMPANY IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER’S BEHALF CONCERNING THE PROPERTY, THE DEFEASANCE SECURITY, THE INTERESTS, THE OWNERS OR THE ENTITY DOCUMENTS, EXCEPT AS EXPRESSLY PROVIDED IN THE SELLER’S WARRANTIES. ADDITIONALLY, COMPANY AND SELLER HEREBY AGREE THAT (A) EXCEPT FOR SELLER’S WARRANTIES, COMPANY IS TAKING THE INTERESTS AND ITS INDIRECT INTERESTS IN THE PROPERTY AND DEFEASANCE SECURITY “AS IS” WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER’S WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY, THE DEFEASANCE SECURITY OR THE INTERESTS ARE FIT FOR A PARTICULAR PURPOSE, (B) EXCEPT FOR SELLER’S WARRANTIES, COMPANY IS SOLELY RELYING UPON ITS OPPORTUNITY TO HAVE CONDUCTED AN EXAMINATION OF THE PROPERTY, THE DEFEASANCE SECURITY, THE INTERESTS, THE OWNERS AND THE OPERATING AGREEMENTS, AND (C) COMPANY TAKES THE PROPERTY, THE DEFEASANCE SECURITY AND THE INTERESTS UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR SELLER’S WARRANTIES). WITH RESPECT TO THE FOLLOWING, COMPANY FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR SELLER’S WARRANTIES, SELLER SHALL NOT HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY OF ANY KIND AND THAT SELLER HAS NOT MADE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND: 1. THE CONTENT OR ACCURACY OF ANY REPORT, STUDY, OPINION OR CONCLUSION OF ANY SOILS, TOXIC, ENVIRONMENTAL OR OTHER ENGINEER OR OTHER PERSON OR ENTITY WHO HAS EXAMINED THE PROPERTY OR ANY ASPECT THEREOF; 2. THE CONTENT OR ACCURACY OF ANY OF THE ITEMS (INCLUDING, WITHOUT LIMITATION, THE ENTITY DOCUMENTS) DELIVERED TO COMPANY PURSUANT TO COMPANY’S REVIEW OF THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS AND THE CONDITION OF THE PROPERTY AND DEFEASANCE SECURITY; OR 3. THE CONTENT OR ACCURACY OF ANY PROJECTION, FINANCIAL OR MARKETING ANALYSIS OR OTHER INFORMATION GIVEN TO COMPANY BY SELLER OR REVIEWED BY COMPANY WITH RESPECT TO THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS OR THE PROPERTY AND DEFEASANCE SECURITY. COMPANY ALSO ACKNOWLEDGES THAT THE REAL PROPERTY MAY OR MAY NOT CONTAIN ASBESTOS AND, IF THE REAL PROPERTY CONTAINS ASBESTOS, THAT THE OWNER MAY OR MAY NOT BE REQUIRED TO REMEDIATE ANY ASBESTOS CONDITION IN ACCORDANCE WITH APPLICABLE LAW. COMPANY IS A SOPHISTICATED REAL ESTATE INVESTOR AND IS, OR WILL BE AS OF THE EXPIRATION OF THE FINANCING CONTINGENCY PERIOD, FAMILIAR WITH THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS, THE DEFEASANCE SECURITY AND THE REAL PROPERTY AND ITS SUITABILITY FOR COMPANY’S INTENDED USE. THE PROVISIONS OF THIS SECTION 11.2 SHALL SURVIVE INDEFINITELY ANY CLOSING OR TERMINATION OF THIS AGREEMENT AND SHALL NOT BE MERGED INTO THE DOCUMENTS EXECUTED AT CLOSING. ADDITIONALLY, COMPANY COVENANTS THAT, FOLLOWING THE CLOSING, OTHER THAN WITH RESPECT TO CLAIMS TO THE EXTENT ARISING FROM SELLER’S BREACH OF SELLER’S WARRANTIES TO THE EXTENT THE SAME SURVIVE THE CLOSING OR ANY OTHER INDEMNITIES OR OTHER PROVISIONS OF THIS AGREEMENT THAT SHALL SPECIFICALLY SURVIVE THE CLOSING, COMPANY SHALL NOT, AND SHALL NOT PERMIT ITS AFFILIATES, TO COMMENCE ANY CLAIM, LITIGATION OR OTHER ACTION AGAINST SELLER, OR ITS AFFILIATES, FOR ANY CLAIMS ASSOCIATED WITH THE INTERESTS, THE OWNERS OR THE PROPERTY AND DEFEASANCE SECURITY, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS RELATING TO THE VALUATION, MARKETABILITY, UTILITY, OR PHYSICAL OR ENVIRONMENTAL CONDITION THEREOF. /s/ Authorized Signatory COMPANY'S INITIALS
Appears in 1 contract
Sources: Agreement for Sale of Membership Interests (KBS Real Estate Investment Trust, Inc.)
AS-IS. If this Agreement is not terminated pursuant to As of the terms expiration of Section 4.3.2 hereofthe Due Diligence Period, except for the Seller's Warranties (as hereinafter defined), the Company Buyer will be deemed to have had the opportunity to have:
(a) examined and inspected the Property and Defeasance Security and Company shall be deemed to will know and be satisfied with the physical condition, quality, quantity and state of repair of the Property and Defeasance Security in all respects (including, without limitation, the compliance of the Real Property with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any comparable local or state laws (collectively, the “ADA”)) and by proceeding with this transaction following the expiration of the Due Diligence Period shall be deemed to have determined that the same is satisfactory to Buyer;
(b) reviewed the Entity Documents Property Information and all instruments, records and documents which Company Buyer deems appropriate or advisable to review in connection with this transaction, including, but not by way of limitation, any and all documentation relating to the Interests, any and all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees relating to the Real Property or the business conducted thereon, and Company Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same and the information and data contained therein and evidenced thereby are satisfactory to CompanyBuyer;
(c) reviewed all applicable laws, ordinances, rules and governmental regulations (including, but not limited to, those relating to building, zoning and land use) affecting the development, use, occupancy or enjoyment of the Real Property, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer; and
(cd) at its own cost and expense, made its own independent investigation respecting the Property, the Defeasance Security, the Interests Property and all other aspects of this transaction, and shall have relied thereon and on the advice of its consultants in entering into this Agreement, and Company Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to CompanyBuyer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR SELLER’S REPRESENTATIONS AND WARRANTIES IN SECTION 11.1 OF THIS AGREEMENT AND ANY WARRANTIES OF TITLE CONTAINED IN ANY INSTRUMENTS THE DEED DELIVERED BY SELLER IN CONNECTION WITH AT THE CLOSING AND SELLER’S COVENANTS HEREIN AND THEREIN CLOSE OF ESCROW (“SELLER’S WARRANTIES”), THIS SALE IS MADE AND WILL BE MADE WITHOUT REPRESENTATION, COVENANT, OR WARRANTY OF ANY KIND (WHETHER EXPRESS, IMPLIED, OR, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STATUTORY) BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, COMPANY BUYER AGREES TO ACCEPT THE INTERESTS AND THE OWNER’S INTEREST IN THE PROPERTY AND DEFEASANCE SECURITY ON AN “AS IS” AND “WHERE IS” BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION OR WARRANTY, ALL OF WHICH SELLER HEREBY DISCLAIMS, EXCEPT FOR SELLER’S WARRANTIES. EXCEPT FOR SELLER’S WARRANTIES, NO WARRANTY OR REPRESENTATION IS MADE BY SELLER AS TO FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, QUALITY, CONDITION, OPERATION OR INCOME, COMPLIANCE WITH DRAWINGS OR SPECIFICATIONS, ABSENCE OF DEFECTS, ABSENCE OF HAZARDOUS OR TOXIC SUBSTANCES, ABSENCE OF FAULTS, FLOODING, OR COMPLIANCE WITH LAWS AND REGULATIONS INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO HEALTH, SAFETY, AND THE ENVIRONMENT (INCLUDING, WITHOUT LIMITATION, THE ADA). COMPANY BUYER ACKNOWLEDGES THAT COMPANY EXCEPT FOR SELLER’S WARRANTIES, BUYER HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS OWN INVESTIGATION OF THE INTERESTS, THE OWNERS AND THE ENTITY DOCUMENTS AND THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND DEFEASANCE SECURITY AND THAT COMPANY BUYER IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER’S BEHALF CONCERNING THE PROPERTY, THE DEFEASANCE SECURITY, THE INTERESTS, THE OWNERS OR THE ENTITY DOCUMENTS, EXCEPT AS EXPRESSLY PROVIDED IN THE SELLER’S WARRANTIES. ADDITIONALLY, COMPANY BUYER AND SELLER HEREBY AGREE THAT (A) EXCEPT FOR SELLER’S WARRANTIES, COMPANY BUYER IS TAKING THE INTERESTS AND ITS INDIRECT INTERESTS IN THE PROPERTY AND DEFEASANCE SECURITY “AS IS” WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER’S WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY, THE DEFEASANCE SECURITY OR THE INTERESTS ARE PROPERTY IS FIT FOR A PARTICULAR PURPOSE, (B) EXCEPT FOR SELLER’S WARRANTIES, COMPANY BUYER IS SOLELY RELYING UPON ITS OPPORTUNITY TO HAVE CONDUCTED AN EXAMINATION OF THE PROPERTY, THE DEFEASANCE SECURITY, THE INTERESTS, THE OWNERS AND THE OPERATING AGREEMENTS, AND (C) COMPANY BUYER TAKES THE PROPERTY, THE DEFEASANCE SECURITY AND THE INTERESTS PROPERTY UNDER THIS AGREEMENT UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR THE LIMITED WARRANTIES OF TITLE SET FORTH IN THE DEED AND SELLER’S WARRANTIES). WITH RESPECT TO THE FOLLOWING, COMPANY BUYER FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR SELLER’S WARRANTIES, THAT SELLER SHALL NOT HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY OF ANY KIND AND THAT SELLER HAS NOT MADE ANY NO REPRESENTATIONS OR WARRANTIES OF ANY KIND:
1. THE CONTENT OR ACCURACY OF ANY REPORT, STUDY, OPINION OR CONCLUSION OF ANY SOILS, TOXIC, ENVIRONMENTAL OR OTHER ENGINEER OR OTHER PERSON OR ENTITY WHO HAS EXAMINED THE PROPERTY OR ANY ASPECT THEREOF;
2. THE CONTENT OR ACCURACY OF ANY OF THE ITEMS (INCLUDING, WITHOUT LIMITATION, THE ENTITY DOCUMENTSPROPERTY INFORMATION) DELIVERED TO COMPANY BUYER PURSUANT TO COMPANYBUYER’S REVIEW OF THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS AND THE CONDITION OF THE PROPERTY AND DEFEASANCE SECURITYPROPERTY; OR
3. THE CONTENT OR ACCURACY OF ANY PROJECTION, FINANCIAL OR MARKETING ANALYSIS OR OTHER INFORMATION GIVEN TO COMPANY BUYER BY SELLER OR REVIEWED BY COMPANY BUYER WITH RESPECT TO THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS OR THE PROPERTY AND DEFEASANCE SECURITYPROPERTY. COMPANY BUYER ALSO ACKNOWLEDGES THAT THE REAL PROPERTY MAY OR MAY NOT CONTAIN ASBESTOS AND, IF THE REAL PROPERTY CONTAINS ASBESTOS, THAT THE OWNER BUYER MAY OR MAY NOT BE REQUIRED TO REMEDIATE ANY ASBESTOS CONDITION IN ACCORDANCE WITH APPLICABLE LAW. COMPANY BUYER IS A SOPHISTICATED REAL ESTATE INVESTOR AND IS, OR WILL BE AS OF THE EXPIRATION CLOSE OF THE FINANCING CONTINGENCY PERIODESCROW, FAMILIAR WITH THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS, THE DEFEASANCE SECURITY AND THE REAL PROPERTY AND ITS SUITABILITY FOR COMPANYBUYER’S INTENDED USE. THE PROVISIONS OF THIS SECTION 11.2 SHALL SURVIVE INDEFINITELY ANY CLOSING OR TERMINATION OF THIS AGREEMENT AND SHALL NOT BE MERGED INTO THE DOCUMENTS EXECUTED AT CLOSING. ADDITIONALLY, COMPANY COVENANTS THAT, FOLLOWING THE CLOSING, OTHER THAN WITH RESPECT TO CLAIMS TO THE EXTENT ARISING FROM SELLER’S BREACH CLOSE OF SELLER’S WARRANTIES TO THE EXTENT THE SAME SURVIVE THE CLOSING OR ANY OTHER INDEMNITIES OR OTHER PROVISIONS OF THIS AGREEMENT THAT SHALL SPECIFICALLY SURVIVE THE CLOSING, COMPANY SHALL NOT, AND SHALL NOT PERMIT ITS AFFILIATES, TO COMMENCE ANY CLAIM, LITIGATION OR OTHER ACTION AGAINST SELLER, OR ITS AFFILIATES, FOR ANY CLAIMS ASSOCIATED WITH THE INTERESTS, THE OWNERS OR THE PROPERTY AND DEFEASANCE SECURITY, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS RELATING TO THE VALUATION, MARKETABILITY, UTILITY, OR PHYSICAL OR ENVIRONMENTAL CONDITION THEREOFESCROW. /s/ Authorized Signatory COMPANY'S PMM BUYER’S INITIALS
Appears in 1 contract
Sources: Purchase and Sale Agreement (KBS Real Estate Investment Trust II, Inc.)
AS-IS. If this Agreement is not terminated pursuant to As of the terms expiration of Section 4.3.2 hereofthe Due Diligence Period, except for the Seller's Warranties (as hereinafter defined), the Company Buyer will be deemed to have had the opportunity to have:
(a) examined and inspected the Property and Defeasance Security and Company shall be deemed to will know and be satisfied with the physical condition, quality, quantity and state of repair of the Property and Defeasance Security in all respects (including, without limitation, the compliance of the Real Property with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any comparable local or state laws (collectively, the “"ADA”)") and by proceeding with this transaction following the expiration of the Due Diligence Period shall be deemed to have determined that the same is satisfactory to Borrower;
(b) reviewed the Entity Documents Property Information and all instruments, records and documents which Company Buyer deems appropriate or advisable to review in connection with this transaction, including, but not by way of limitation, any and all documentation relating to the Interests, any and all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees relating to the Real Property or the business conducted thereon, and Company Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same and the information and data contained therein and evidenced thereby are satisfactory to CompanyBuyer;
(c) reviewed all applicable laws, ordinances, rules and governmental regulations (including, but not limited to, those relating to building, zoning and land use) affecting the development, use, occupancy or enjoyment of the Real Property, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer; and
(cd) at its own cost and expense, made its own independent investigation respecting the Property, the Defeasance Security, the Interests Property and all other aspects of this transaction, and shall have relied thereon and on the advice of its consultants in entering into this Agreement, and Company Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to CompanyBuyer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR SELLER’S 'S REPRESENTATIONS AND WARRANTIES IN SECTION 11.1 OF THIS AGREEMENT AND ANY WARRANTIES OF TITLE CONTAINED IN ANY INSTRUMENTS THE DEED DELIVERED BY SELLER IN CONNECTION WITH AT THE CLOSING AND CLOSE OF ESCROW ("SELLER’S COVENANTS HEREIN AND THEREIN (“SELLER’S 'S WARRANTIES”"), THIS SALE IS MADE AND WILL BE MADE WITHOUT REPRESENTATION, COVENANT, OR WARRANTY OF ANY KIND (WHETHER EXPRESS, IMPLIED, OR, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STATUTORY) BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, COMPANY BUYER AGREES TO ACCEPT THE INTERESTS AND THE OWNER’S INTEREST IN THE PROPERTY AND DEFEASANCE SECURITY ON AN “"AS IS” " AND “"WHERE IS” " BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION OR WARRANTY, ALL OF WHICH SELLER HEREBY DISCLAIMS, EXCEPT FOR SELLER’S 'S WARRANTIES. EXCEPT FOR SELLER’S 'S WARRANTIES, NO WARRANTY OR REPRESENTATION IS MADE BY SELLER AS TO FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, QUALITY, CONDITION, OPERATION OR INCOME, COMPLIANCE WITH DRAWINGS OR SPECIFICATIONS, ABSENCE OF DEFECTS, ABSENCE OF HAZARDOUS OR TOXIC SUBSTANCES, ABSENCE OF FAULTS, FLOODING, OR COMPLIANCE WITH LAWS AND REGULATIONS INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO HEALTH, SAFETY, AND THE ENVIRONMENT (INCLUDING, WITHOUT LIMITATION, THE ADA). COMPANY BUYER ACKNOWLEDGES THAT COMPANY BUYER HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS OWN INVESTIGATION OF THE INTERESTS, THE OWNERS AND THE ENTITY DOCUMENTS AND THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND DEFEASANCE SECURITY AND THAT COMPANY BUYER IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER’S 'S BEHALF CONCERNING THE PROPERTY, THE DEFEASANCE SECURITY, THE INTERESTS, THE OWNERS OR THE ENTITY DOCUMENTS, EXCEPT AS EXPRESSLY PROVIDED IN THE SELLER’S WARRANTIES. ADDITIONALLY, COMPANY BUYER AND SELLER HEREBY AGREE THAT (A) EXCEPT FOR SELLER’S 'S WARRANTIES, COMPANY BUYER IS TAKING THE INTERESTS AND ITS INDIRECT INTERESTS IN THE PROPERTY AND DEFEASANCE SECURITY “"AS IS” " WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER’S 'S WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY, THE DEFEASANCE SECURITY OR THE INTERESTS ARE PROPERTY IS FIT FOR A PARTICULAR PURPOSE, (B) EXCEPT FOR SELLER’S 'S WARRANTIES, COMPANY BUYER IS SOLELY RELYING UPON ITS OPPORTUNITY TO HAVE CONDUCTED AN EXAMINATION OF THE PROPERTY, THE DEFEASANCE SECURITY, THE INTERESTS, THE OWNERS AND THE OPERATING AGREEMENTS, AND (C) COMPANY BUYER TAKES THE PROPERTY, THE DEFEASANCE SECURITY AND THE INTERESTS PROPERTY UNDER THIS CONTRACT UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR THE LIMITED WARRANTIES OF TITLE SET FORTH IN THE DEED AND SELLER’S 'S WARRANTIES). WITH RESPECT TO THE FOLLOWING, COMPANY BUYER FURTHER ACKNOWLEDGES AND AGREES THAT, THAT EXCEPT FOR SELLER’S WARRANTIESAS EXPRESSLY SET FORTH IN THIS AGREEMENT, SELLER SHALL NOT HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY OF ANY KIND AND THAT SELLER HAS NOT MADE ANY NO REPRESENTATIONS OR WARRANTIES OF ANY KIND:
1. THE CONTENT OR ACCURACY OF ANY REPORT, STUDY, OPINION OR CONCLUSION OF ANY SOILS, TOXIC, ENVIRONMENTAL OR OTHER ENGINEER OR OTHER PERSON OR ENTITY WHO HAS EXAMINED THE PROPERTY OR ANY ASPECT THEREOF;
2. THE CONTENT OR ACCURACY OF ANY OF THE ITEMS (INCLUDING, WITHOUT LIMITATION, THE ENTITY DOCUMENTSPROPERTY INFORMATION) DELIVERED TO COMPANY BUYER PURSUANT TO COMPANY’S BUYER'S REVIEW OF THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS AND THE CONDITION OF THE PROPERTY AND DEFEASANCE SECURITYPROPERTY; OR
3. THE CONTENT OR ACCURACY OF ANY PROJECTION, FINANCIAL OR MARKETING ANALYSIS OR OTHER INFORMATION GIVEN TO COMPANY BUYER BY SELLER OR REVIEWED BY COMPANY BUYER WITH RESPECT TO THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS OR THE PROPERTY AND DEFEASANCE SECURITYPROPERTY. COMPANY BUYER ALSO ACKNOWLEDGES THAT THE REAL PROPERTY MAY OR MAY NOT CONTAIN ASBESTOS AND, IF THE REAL PROPERTY CONTAINS ASBESTOS, THAT THE OWNER BUYER MAY OR MAY NOT BE REQUIRED TO REMEDIATE ANY ASBESTOS CONDITION IN ACCORDANCE WITH APPLICABLE LAW. COMPANY BUYER IS A SOPHISTICATED REAL ESTATE INVESTOR AND IS, OR WILL BE AS OF THE EXPIRATION CLOSE OF THE FINANCING CONTINGENCY PERIODESCROW, FAMILIAR WITH THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS, THE DEFEASANCE SECURITY AND THE REAL PROPERTY AND ITS SUITABILITY FOR COMPANY’S BUYER'S INTENDED USE. THE PROVISIONS OF THIS SECTION 11.2 SHALL SURVIVE INDEFINITELY ANY CLOSING OR TERMINATION OF THIS AGREEMENT AND SHALL NOT BE MERGED INTO THE DOCUMENTS EXECUTED AT CLOSINGCLOSE OF ESCROW. ADDITIONALLY, COMPANY COVENANTS THAT, FOLLOWING THE CLOSING, OTHER THAN WITH RESPECT TO CLAIMS TO THE EXTENT ARISING FROM SELLER’S BREACH OF SELLER’S WARRANTIES TO THE EXTENT THE SAME SURVIVE THE CLOSING OR ANY OTHER INDEMNITIES OR OTHER PROVISIONS OF THIS AGREEMENT THAT SHALL SPECIFICALLY SURVIVE THE CLOSING, COMPANY SHALL NOT, AND SHALL NOT PERMIT ITS AFFILIATES, TO COMMENCE ANY CLAIM, LITIGATION OR OTHER ACTION AGAINST SELLER, OR ITS AFFILIATES, FOR ANY CLAIMS ASSOCIATED WITH THE INTERESTS, THE OWNERS OR THE PROPERTY AND DEFEASANCE SECURITY, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS RELATING TO THE VALUATION, MARKETABILITY, UTILITY, OR PHYSICAL OR ENVIRONMENTAL CONDITION THEREOF. /s/ Authorized Signatory COMPANYWLO -------------------- BUYER'S INITIALS
Appears in 1 contract
Sources: Purchase and Sale Agreement (Wells Real Estate Investment Trust Inc)
AS-IS. If this Agreement is not terminated pursuant to As of the terms expiration of Section 4.3.2 hereofthe Due Diligence Period, except for the Seller's Warranties (as hereinafter defined), the Company Buyer will be deemed to have had the opportunity to have:
(a) examined and inspected the Property and Defeasance Security and Company shall be deemed to will know and be satisfied with the physical condition, quality, quantity and state of repair of the Property and Defeasance Security in all respects (including, without limitation, the compliance of the Real Property with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any comparable local or state laws (collectively, the “ADA”)) and by proceeding with this transaction following the expiration of the Due Diligence Period shall be deemed to have determined that the same is satisfactory to Buyer subject to all representations, warranties, covenants and agreements of Seller contained herein;
(b) reviewed the Entity Documents Property Information and all instruments, records and documents which Company Buyer deems appropriate or advisable to review in connection with this transaction, including, but not by way of limitation, any and all documentation relating to the Interests, any and all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees relating to the Real Property or the business conducted thereon, and Company Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same and the information and data contained therein and evidenced thereby are satisfactory to CompanyBuyer subject to all representations, warranties, covenants and agreements of Seller contained herein;
(c) reviewed all applicable laws, ordinances, rules and governmental regulations (including, but not limited to, those relating to building, zoning and land use) affecting the development, use, occupancy or enjoyment of the Real Property, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer subject to all representations, warranties, covenants and agreements of Seller contained herein; and
(cd) at its own cost and expense, made its own independent investigation respecting the Property, the Defeasance Security, the Interests Property and all other aspects of this transaction, and shall have relied thereon and on the advice of its consultants in entering into this Agreement, and Company Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to CompanyBuyer subject to all representations, warranties, covenants and agreements of Seller contained herein. In addition, and notwithstanding anything to the contrary set forth in this Agreement or in the Deed at the time the Deed is recorded (including, without limitation, any express or implied covenants set forth therein), Seller is transferring the Property to Buyer subject to all of the Permitted Exceptions. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR SELLER’S REPRESENTATIONS AND WARRANTIES IN SECTION 11.1 OF THIS AGREEMENT AND ANY WARRANTIES OF TITLE CONTAINED IN THE DEED AND ANY INSTRUMENTS OTHER DOCUMENTS DELIVERED AT THE CLOSE OF ESCROW AND ANY COVENANTS OR OBLIGATIONS EXPRESSLY UNDERTAKEN BY SELLER IN CONNECTION WITH THE CLOSING AND SELLER’S COVENANTS HEREIN AND THEREIN HEREUNDER (“SELLER’S WARRANTIES”), THIS SALE IS MADE AND WILL BE MADE WITHOUT REPRESENTATION, COVENANT, OR WARRANTY OF ANY KIND (WHETHER EXPRESS, IMPLIED, OR, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STATUTORY) BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, COMPANY BUYER AGREES TO ACCEPT THE INTERESTS AND THE OWNER’S INTEREST IN THE PROPERTY AND DEFEASANCE SECURITY ON AN “AS IS” AND “WHERE IS” BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION OR WARRANTY, ALL OF WHICH SELLER HEREBY DISCLAIMS, EXCEPT FOR SELLER’S WARRANTIES. EXCEPT FOR SELLER’S WARRANTIES, NO WARRANTY OR REPRESENTATION IS MADE BY SELLER AS TO FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, QUALITY, CONDITION, OPERATION OR INCOME, COMPLIANCE WITH DRAWINGS OR SPECIFICATIONS, ABSENCE OF DEFECTS, ABSENCE OF HAZARDOUS OR TOXIC SUBSTANCES, ABSENCE OF FAULTS, FLOODING, OR COMPLIANCE WITH LAWS AND REGULATIONS INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO HEALTH, SAFETY, AND THE ENVIRONMENT (INCLUDING, WITHOUT LIMITATION, THE ADA). COMPANY BUYER ACKNOWLEDGES THAT COMPANY BUYER HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS OWN INVESTIGATION OF THE INTERESTS, THE OWNERS AND THE ENTITY DOCUMENTS AND THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND DEFEASANCE SECURITY AND THAT COMPANY BUYER IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER’S BEHALF CONCERNING THE PROPERTY, THE DEFEASANCE SECURITY, THE INTERESTS, THE OWNERS OR THE ENTITY DOCUMENTS, EXCEPT AS EXPRESSLY PROVIDED IN THE SELLER’S WARRANTIES. ADDITIONALLY, COMPANY BUYER AND SELLER HEREBY AGREE THAT (A) EXCEPT FOR SELLER’S WARRANTIES, COMPANY BUYER IS TAKING THE INTERESTS AND ITS INDIRECT INTERESTS IN THE PROPERTY AND DEFEASANCE SECURITY “AS IS” WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER’S WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY, THE DEFEASANCE SECURITY OR THE INTERESTS ARE PROPERTY IS FIT FOR A PARTICULAR PURPOSE, (B) EXCEPT FOR SELLER’S WARRANTIES, COMPANY BUYER IS SOLELY RELYING UPON ITS OPPORTUNITY TO HAVE CONDUCTED AN EXAMINATION OF THE PROPERTY, THE DEFEASANCE SECURITY, THE INTERESTS, THE OWNERS AND THE OPERATING AGREEMENTS, AND (C) COMPANY BUYER TAKES THE PROPERTY, THE DEFEASANCE SECURITY AND THE INTERESTS PROPERTY UNDER THIS AGREEMENT UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR THE LIMITED WARRANTIES OF TITLE SET FORTH IN THE DEED AND SELLER’S WARRANTIES). WITH RESPECT TO THE FOLLOWING, COMPANY BUYER FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR SELLER’S WARRANTIES, THAT SELLER SHALL NOT HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY OF ANY KIND AND THAT SELLER HAS NOT MADE ANY NO REPRESENTATIONS OR WARRANTIES OF ANY KINDKIND IN EACH CASE, OTHER THAN THE SELLER’S WARRANTIES, IF ANY:
1. THE CONTENT OR ACCURACY OF ANY REPORT, STUDY, OPINION OR CONCLUSION OF ANY SOILS, TOXIC, ENVIRONMENTAL OR OTHER ENGINEER OR OTHER PERSON OR ENTITY WHO HAS EXAMINED THE PROPERTY OR ANY ASPECT THEREOF;
2. THE CONTENT OR ACCURACY OF ANY OF THE ITEMS (INCLUDING, WITHOUT LIMITATION, THE ENTITY DOCUMENTSPROPERTY INFORMATION) DELIVERED TO COMPANY BUYER PURSUANT TO COMPANYBUYER’S REVIEW OF THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS AND THE CONDITION OF THE PROPERTY AND DEFEASANCE SECURITYPROPERTY; OR
3. THE CONTENT OR ACCURACY OF ANY PROJECTION, FINANCIAL OR MARKETING ANALYSIS OR OTHER INFORMATION GIVEN TO COMPANY BUYER BY SELLER OR REVIEWED BY COMPANY BUYER WITH RESPECT TO THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS OR THE PROPERTY AND DEFEASANCE SECURITYPROPERTY. COMPANY BUYER ALSO ACKNOWLEDGES THAT THE REAL PROPERTY MAY OR MAY NOT CONTAIN ASBESTOS AND, IF THE REAL PROPERTY CONTAINS ASBESTOS, THAT THE OWNER BUYER MAY OR MAY NOT BE REQUIRED TO REMEDIATE ANY ASBESTOS CONDITION IN ACCORDANCE WITH APPLICABLE LAW. COMPANY BUYER IS A SOPHISTICATED REAL ESTATE INVESTOR AND IS, OR WILL BE AS OF THE EXPIRATION CLOSE OF THE FINANCING CONTINGENCY PERIODESCROW, FAMILIAR WITH THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS, THE DEFEASANCE SECURITY AND THE REAL PROPERTY AND ITS SUITABILITY FOR COMPANYBUYER’S INTENDED USE. THE PROVISIONS OF THIS SECTION 11.2 SHALL SURVIVE INDEFINITELY ANY CLOSING OR TERMINATION OF THIS AGREEMENT AND SHALL NOT BE MERGED INTO THE DOCUMENTS EXECUTED AT CLOSING. ADDITIONALLY, COMPANY COVENANTS THAT, FOLLOWING THE CLOSING, OTHER THAN WITH RESPECT TO CLAIMS TO THE EXTENT ARISING FROM SELLER’S BREACH CLOSE OF SELLER’S WARRANTIES TO THE EXTENT THE SAME SURVIVE THE CLOSING OR ANY OTHER INDEMNITIES OR OTHER PROVISIONS OF THIS AGREEMENT THAT SHALL SPECIFICALLY SURVIVE THE CLOSING, COMPANY SHALL NOT, AND SHALL NOT PERMIT ITS AFFILIATES, TO COMMENCE ANY CLAIM, LITIGATION OR OTHER ACTION AGAINST SELLER, OR ITS AFFILIATES, FOR ANY CLAIMS ASSOCIATED WITH THE INTERESTS, THE OWNERS OR THE PROPERTY AND DEFEASANCE SECURITY, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS RELATING TO THE VALUATION, MARKETABILITY, UTILITY, OR PHYSICAL OR ENVIRONMENTAL CONDITION THEREOFESCROW. /s/ Authorized Signatory COMPANY'S INITIALSRJH BUYER’S INITIALS Notwithstanding anything contained herein to the contrary, Seller shall not be released or discharged from any liability to the extent the same arises out of (i) a breach of a representation or warranty made by Seller under this Agreement that by the express terms of this Agreement survive the Closing, (ii) Seller’s fraud, (iii) Seller’s breach of any provision of this Agreement that by the express terms of this Agreement survives Closing, or (iv) to the extent first arising prior to (or relating to the period prior to) the Closing Date, any claim by a third party for personal injury at the Property that was incurred prior to the Closing Date. The provisions of this Section 11.2 shall survive the Closing or the earlier termination of this Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (KBS Real Estate Investment Trust, Inc.)
AS-IS. If this Agreement is not terminated pursuant to the terms of Section 4.3.2 hereof, except for the Seller's Warranties (as hereinafter defined), the Company will be deemed to have had the opportunity to have:
(a) examined and inspected the Property and Defeasance Security and Company shall be deemed to know and be satisfied with the physical condition, quality, quantity and state of repair of the Property and Defeasance Security in all respects (including, without limitation, the compliance of the Real Property with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any comparable local or state laws (collectively, the “ADA”);
(b) reviewed the Entity Documents and all instruments, records and documents which Company deems appropriate or advisable to review in connection with this transaction, including, but not by way of limitation, any and all documentation relating to the Interests, any and all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees relating to the Real Property or the business conducted thereon, and Company shall be deemed to have determined that the same and the information and data contained therein and evidenced thereby are satisfactory to Company; and
(c) at its own cost and expense, made its own independent investigation respecting the Property, the Defeasance Security, the Interests and all other aspects of this transaction, and shall have relied thereon and on the advice of its consultants in entering into this Agreement, and Company shall be deemed to have determined that the same are satisfactory to Company. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR SELLER’S REPRESENTATIONS AND WARRANTIES IN SECTION 11.1 OF THIS AGREEMENT AND IN ANY INSTRUMENTS DELIVERED BY SELLER IN CONNECTION WITH THE CLOSING AND SELLER’S COVENANTS HEREIN AND THEREIN (“SELLER’S WARRANTIES”), THIS SALE IS MADE AND WILL BE MADE WITHOUT REPRESENTATION, COVENANT, OR WARRANTY OF ANY KIND (WHETHER EXPRESS, IMPLIED, OR, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STATUTORY) BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, COMPANY AGREES TO ACCEPT THE INTERESTS AND THE OWNER’S INTEREST IN THE PROPERTY AND DEFEASANCE SECURITY ON AN “AS IS” AND “WHERE IS” BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION OR WARRANTY, ALL OF WHICH SELLER HEREBY DISCLAIMS, EXCEPT FOR SELLER’S WARRANTIES. EXCEPT FOR SELLER’S WARRANTIES, NO WARRANTY OR REPRESENTATION IS MADE BY SELLER AS TO FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, QUALITY, CONDITION, OPERATION OR INCOME, COMPLIANCE WITH DRAWINGS OR SPECIFICATIONS, ABSENCE OF DEFECTS, ABSENCE OF HAZARDOUS OR TOXIC SUBSTANCES, ABSENCE OF FAULTS, FLOODING, OR COMPLIANCE WITH LAWS AND REGULATIONS INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO HEALTH, SAFETY, AND THE ENVIRONMENT (INCLUDING, WITHOUT LIMITATION, THE ADA). COMPANY ACKNOWLEDGES THAT COMPANY HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS OWN INVESTIGATION OF THE INTERESTS, THE OWNERS AND THE ENTITY DOCUMENTS AND THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND DEFEASANCE SECURITY AND THAT COMPANY IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER’S BEHALF CONCERNING THE PROPERTY, THE DEFEASANCE SECURITY, THE INTERESTS, THE OWNERS OR THE ENTITY DOCUMENTS, EXCEPT AS EXPRESSLY PROVIDED IN THE SELLER’S WARRANTIES. ADDITIONALLY, COMPANY AND SELLER HEREBY AGREE THAT (A) EXCEPT FOR SELLER’S WARRANTIES, COMPANY IS TAKING THE INTERESTS AND ITS INDIRECT INTERESTS IN THE PROPERTY AND DEFEASANCE SECURITY “AS IS” WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER’S WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY, THE DEFEASANCE SECURITY OR THE INTERESTS ARE FIT FOR A PARTICULAR PURPOSE, (B) EXCEPT FOR SELLER’S WARRANTIES, COMPANY IS SOLELY RELYING UPON ITS OPPORTUNITY TO HAVE CONDUCTED AN EXAMINATION OF THE PROPERTY, THE DEFEASANCE SECURITY, THE INTERESTS, THE OWNERS AND THE OPERATING AGREEMENTS, AND (C) COMPANY TAKES THE PROPERTY, THE DEFEASANCE SECURITY AND THE INTERESTS UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR SELLER’S WARRANTIES). WITH RESPECT TO THE FOLLOWING, COMPANY FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR SELLER’S WARRANTIES, SELLER SHALL NOT HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY OF ANY KIND AND THAT SELLER HAS NOT MADE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND:
1. THE CONTENT OR ACCURACY OF ANY REPORT, STUDY, OPINION OR CONCLUSION OF ANY SOILS, TOXIC, ENVIRONMENTAL OR OTHER ENGINEER OR OTHER PERSON OR ENTITY WHO HAS EXAMINED THE PROPERTY OR ANY ASPECT THEREOF;
2. THE CONTENT OR ACCURACY OF ANY OF THE ITEMS (INCLUDING, WITHOUT LIMITATION, THE ENTITY DOCUMENTS) DELIVERED TO COMPANY PURSUANT TO COMPANY’S REVIEW OF THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS AND THE CONDITION OF THE PROPERTY AND DEFEASANCE SECURITY; OR
3. THE CONTENT OR ACCURACY OF ANY PROJECTION, FINANCIAL OR MARKETING ANALYSIS OR OTHER INFORMATION GIVEN TO COMPANY BY SELLER OR REVIEWED BY COMPANY WITH RESPECT TO THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS OR THE PROPERTY AND DEFEASANCE SECURITY. COMPANY ALSO ACKNOWLEDGES THAT THE REAL PROPERTY MAY OR MAY NOT CONTAIN ASBESTOS AND, IF THE REAL PROPERTY CONTAINS ASBESTOS, THAT THE OWNER MAY OR MAY NOT BE REQUIRED TO REMEDIATE ANY ASBESTOS CONDITION IN ACCORDANCE WITH APPLICABLE LAW. COMPANY IS A SOPHISTICATED REAL ESTATE INVESTOR AND IS, OR WILL BE AS OF THE EXPIRATION OF THE FINANCING CONTINGENCY PERIOD, FAMILIAR WITH THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS, THE DEFEASANCE SECURITY AND THE REAL PROPERTY AND ITS SUITABILITY FOR COMPANY’S INTENDED USE. THE PROVISIONS OF THIS SECTION 11.2 SHALL SURVIVE INDEFINITELY ANY CLOSING OR TERMINATION OF THIS AGREEMENT AND SHALL NOT BE MERGED INTO THE DOCUMENTS EXECUTED AT CLOSING. ADDITIONALLY, COMPANY COVENANTS THAT, FOLLOWING THE CLOSING, OTHER THAN WITH RESPECT TO CLAIMS TO THE EXTENT ARISING FROM SELLER’S BREACH OF SELLER’S WARRANTIES TO THE EXTENT THE SAME SURVIVE THE CLOSING OR ANY OTHER INDEMNITIES OR OTHER PROVISIONS OF THIS AGREEMENT THAT SHALL SPECIFICALLY SURVIVE THE CLOSING, COMPANY SHALL NOT, AND SHALL NOT PERMIT ITS AFFILIATES, TO COMMENCE ANY CLAIM, LITIGATION OR OTHER ACTION AGAINST SELLER, OR ITS AFFILIATES, FOR ANY CLAIMS ASSOCIATED WITH THE INTERESTS, THE OWNERS OR THE PROPERTY AND DEFEASANCE SECURITY, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS RELATING TO THE VALUATION, MARKETABILITY, UTILITY, OR PHYSICAL OR ENVIRONMENTAL CONDITION THEREOF. /s/ Authorized Signatory BH COMPANY'S ’S INITIALS
Appears in 1 contract
Sources: Agreement for Sale of Membership Interests (Gramercy Capital Corp)
AS-IS. If this Agreement is not terminated pursuant Buyer acknowledges and agrees that prior to the terms end of Section 4.3.2 hereofthe Due Diligence Period, except for the Seller's Warranties (as hereinafter defined), the Company Buyer and its representatives will be deemed to have had the been afforded sufficient opportunity to have:
(a) examined make and inspected complete such review of the Property Materials and Defeasance Security any other documents relating to the Property which have been delivered or made available to Buyer, to perform its own independent economic analysis of the Property, and Company shall be deemed to know make and be satisfied with the physical condition, quality, quantity and state of repair complete such inspections of the Property and Defeasance Security in all respects (matters related thereto as Buyer and its representatives desire, including, without limitation, governmental laws and regulations to which the compliance of the Real Property with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990)is subject, and any comparable local or state laws (collectively, Buyer shall accept the “ADA”);
(b) reviewed Property upon the Entity Documents basis of Buyer’s own review and determination of all instruments, records and documents which Company deems appropriate or advisable matters pertaining to review in connection with this transaction, including, but not by way of limitation, any and all documentation relating to the Interests, any and all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees relating to the Real Property or the business conducted thereon, and Company shall be deemed to have determined that the same and the information and data contained therein and evidenced thereby are satisfactory to Company; and
(c) at its own cost and expense, made its own independent investigation respecting the Property, except as set forth in the Defeasance Security, Sellers’ express representations and warranties set forth in this Agreement (all of which shall be subject to the Interests express limitations and all other aspects of this transaction, and shall have relied thereon and on the advice of its consultants conditions set forth in entering into this Agreement, and Company shall be deemed to have determined being collectively the “Sellers’ Representations”). Buyer acknowledges and agrees that the same are satisfactory Property is to Company. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR SELLER’S REPRESENTATIONS AND WARRANTIES IN SECTION 11.1 OF THIS AGREEMENT AND IN ANY INSTRUMENTS DELIVERED BY SELLER IN CONNECTION WITH THE CLOSING AND SELLER’S COVENANTS HEREIN AND THEREIN (“SELLER’S WARRANTIES”), THIS SALE IS MADE AND WILL BE MADE WITHOUT REPRESENTATION, COVENANT, OR WARRANTY OF ANY KIND (WHETHER EXPRESS, IMPLIED, OR, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STATUTORY) BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, COMPANY AGREES TO ACCEPT THE INTERESTS AND THE OWNER’S INTEREST IN THE PROPERTY AND DEFEASANCE SECURITY ON AN be sold and conveyed to and accepted by Buyer in an “AS IS” IS AND “WHERE IS” BASIS, WITH ALL FAULTS” condition with all faults, AND WITHOUT ANY REPRESENTATION OR WARRANTYexcept as set forth in Sellers’ Representations. Buyer further acknowledges that prior to the end of the Due Diligence Period it will have reviewed and be knowledgeable of the matters described in the Property Materials and all other documents delivered or made available to Buyer or any of the Buyer’s Representatives, ALL OF WHICH SELLER HEREBY DISCLAIMS, EXCEPT FOR SELLER’S WARRANTIESand that Buyer will acquire the Property subject to all matters described in such documents. EXCEPT FOR SELLER’S WARRANTIES, NO WARRANTY OR REPRESENTATION IS MADE BY SELLER AS TO FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, QUALITY, CONDITION, OPERATION OR INCOME, COMPLIANCE WITH DRAWINGS OR SPECIFICATIONS, ABSENCE OF DEFECTS, ABSENCE OF HAZARDOUS OR TOXIC SUBSTANCES, ABSENCE OF FAULTS, FLOODING, OR COMPLIANCE WITH LAWS AND REGULATIONS INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO HEALTH, SAFETY, AND THE ENVIRONMENT (INCLUDING, WITHOUT LIMITATION, THE ADASellers make no representation or warranty as to the accuracy or completeness of the Property Materials or any other documents delivered or made available to Buyer or Buyer’s Representatives except as expressly provided in Section 9(a)(11)). COMPANY ACKNOWLEDGES THAT COMPANY HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS OWN INVESTIGATION OF THE INTERESTSBuyer acknowledges that the Property Materials provided may not constitute all documents in a Seller’s files, THE OWNERS AND THE ENTITY DOCUMENTS AND THE PHYSICALand that there may be documents in locations other than a Seller’s office identified in Section 19 or which a Seller have not located or of which they are unaware, ENVIRONMENTALbut that Sellers have no obligation of make inquiry, ECONOMIC USEinvestigate or search any such files or documents. Buyer acknowledges that some or all of such documents have been obtained by a Seller from previous owners or users of the Property or other sources and Sellers make no representation or warranty as to the reputation or reliability of the persons or entities preparing such documents. Buyer further acknowledges that, COMPLIANCEnotwithstanding that Sellers have delivered or made any documents available for Buyer’s review, AND LEGAL CONDITION OF THE PROPERTY AND DEFEASANCE SECURITY AND THAT COMPANY IS NOT NOW RELYINGBuyer will make its own investigation relative to the Property and will rely on its own investigation in determining the suitability of the Property for its use. Without limiting the foregoing, AND WILL NOT LATER RELYBuyer shall be responsible for obtaining from the Escrow Holder or Title Company any and all documents relating to the title of the Property, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACTfor obtaining from the City any City development, BYzoning or land use approvals, THROUGH OR UNDER OR ON SELLER’S BEHALF CONCERNING THE PROPERTYand for obtaining from applicable governmental and law enforcement agencies such information relative to law enforcement, THE DEFEASANCE SECURITYcriminal activity, THE INTERESTSsafety and security, THE OWNERS OR THE ENTITY DOCUMENTSif it desires such information. Sellers do not make any representations or warranties of any kind whatsoever, EXCEPT AS EXPRESSLY PROVIDED IN THE SELLER’S WARRANTIESeither express or implied or arising by operation of law, with respect to the Property or any of such related matters, including any warranty of condition, habitability, merchantability, suitability or fitness for a particular purpose or otherwise, except as expressly provided in this Agreement. ADDITIONALLYIn particular, COMPANY AND SELLER HEREBY AGREE THAT but without limiting the foregoing, Sellers make no representations or warranties with respect to the use, condition, title, occupation or management of the Property, economic viability, value, safety or security issues relating to the Property, compliance with applicable statutes, laws, codes, ordinances, regulations or requirements relating to leasing, zoning, subdivision, planning, building, fire, safety, health or environmental matters, compliance with covenants, conditions and restrictions (A) EXCEPT FOR SELLER’S WARRANTIESwhether or not of record), COMPANY IS TAKING THE INTERESTS AND ITS INDIRECT INTERESTS IN THE PROPERTY AND DEFEASANCE SECURITY “AS IS” WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER’S WARRANTIESother local, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTYmunicipal, THE DEFEASANCE SECURITY OR THE INTERESTS ARE FIT FOR A PARTICULAR PURPOSEregional, (B) EXCEPT FOR SELLER’S WARRANTIESstate or federal requirements, COMPANY IS SOLELY RELYING UPON ITS OPPORTUNITY TO HAVE CONDUCTED AN EXAMINATION OF THE PROPERTYor other statutes, THE DEFEASANCE SECURITYlaws, THE INTERESTScodes, THE OWNERS AND THE OPERATING AGREEMENTSordinances, AND (C) COMPANY TAKES THE PROPERTYregulations or requirements, THE DEFEASANCE SECURITY AND THE INTERESTS UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR SELLER’S WARRANTIES)except as set forth in Sellers’ Representations. WITH RESPECT TO THE FOLLOWINGBuyer acknowledges that it is entering into this Agreement on the basis of Buyer’s own investigation of the physical and environmental conditions of the Property and all other matters affecting the Property, COMPANY FURTHER ACKNOWLEDGES AND AGREES THATincluding without limitation mold and subsurface or latent conditions, EXCEPT FOR SELLER’S WARRANTIESand Buyer assumes the risk that adverse physical and environmental conditions may not have been revealed by its investigations, SELLER SHALL NOT HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY OF ANY KIND AND THAT SELLER HAS NOT MADE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND:
1. THE CONTENT OR ACCURACY OF ANY REPORT, STUDY, OPINION OR CONCLUSION OF ANY SOILS, TOXIC, ENVIRONMENTAL OR OTHER ENGINEER OR OTHER PERSON OR ENTITY WHO HAS EXAMINED THE PROPERTY OR ANY ASPECT THEREOF;
2. THE CONTENT OR ACCURACY OF ANY OF THE ITEMS (INCLUDING, WITHOUT LIMITATION, THE ENTITY DOCUMENTS) DELIVERED TO COMPANY PURSUANT TO COMPANY’S REVIEW OF THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS AND THE CONDITION OF THE PROPERTY AND DEFEASANCE SECURITY; OR
3. THE CONTENT OR ACCURACY OF ANY PROJECTION, FINANCIAL OR MARKETING ANALYSIS OR OTHER INFORMATION GIVEN TO COMPANY BY SELLER OR REVIEWED BY COMPANY WITH RESPECT TO THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS OR THE PROPERTY AND DEFEASANCE SECURITY. COMPANY ALSO ACKNOWLEDGES THAT THE REAL PROPERTY MAY OR MAY NOT CONTAIN ASBESTOS AND, IF THE REAL PROPERTY CONTAINS ASBESTOS, THAT THE OWNER MAY OR MAY NOT BE REQUIRED TO REMEDIATE ANY ASBESTOS CONDITION IN ACCORDANCE WITH APPLICABLE LAW. COMPANY IS A SOPHISTICATED REAL ESTATE INVESTOR AND IS, OR WILL BE AS OF THE EXPIRATION OF THE FINANCING CONTINGENCY PERIOD, FAMILIAR WITH THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS, THE DEFEASANCE SECURITY AND THE REAL PROPERTY AND ITS SUITABILITY FOR COMPANY’S INTENDED USE. THE PROVISIONS OF THIS SECTION 11.2 SHALL SURVIVE INDEFINITELY ANY CLOSING OR TERMINATION OF THIS AGREEMENT AND SHALL NOT BE MERGED INTO THE DOCUMENTS EXECUTED AT CLOSING. ADDITIONALLY, COMPANY COVENANTS THAT, FOLLOWING THE CLOSING, OTHER THAN WITH RESPECT TO CLAIMS TO THE EXTENT ARISING FROM SELLER’S BREACH OF SELLER’S WARRANTIES TO THE EXTENT THE SAME SURVIVE THE CLOSING OR ANY OTHER INDEMNITIES OR OTHER PROVISIONS OF THIS AGREEMENT THAT SHALL SPECIFICALLY SURVIVE THE CLOSING, COMPANY SHALL NOT, AND SHALL NOT PERMIT ITS AFFILIATES, TO COMMENCE ANY CLAIM, LITIGATION OR OTHER ACTION AGAINST SELLER, OR ITS AFFILIATES, FOR ANY CLAIMS ASSOCIATED WITH THE INTERESTS, THE OWNERS OR THE PROPERTY AND DEFEASANCE SECURITY, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS RELATING TO THE VALUATION, MARKETABILITY, UTILITY, OR PHYSICAL OR ENVIRONMENTAL CONDITION THEREOF. /s/ Authorized Signatory COMPANY'S INITIALSexcept as set forth in Sellers’ Representations.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Behringer Harvard Opportunity REIT I, Inc.)
AS-IS. If this Agreement is not terminated pursuant to As of Buyer’s exercise of the Option in accordance with the terms and conditions of Section 4.3.2 1.2 hereof, except for the Seller's Warranties (as hereinafter defined), the Company Buyer will be deemed to have had the opportunity to have:
(a) examined and inspected the Property and Defeasance Security and Company shall be deemed to will know and be satisfied with the physical condition, quality, quantity and state of repair of the Property and Defeasance Security in all respects (including, without limitation, the compliance of the Real Property with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any comparable local or state laws (collectively, the “ADA”)) and by proceeding with this transaction following the expiration of the Due Diligence Period shall be deemed to have determined that the same is satisfactory to Buyer;
(b) reviewed the Entity Documents Property Information and all instruments, records and documents which Company Buyer deems appropriate or advisable to review in connection with this transaction, including, but not by way of limitation, any and all documentation relating to the Interests, any and all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees relating to the Real Property or the business conducted thereon, and Company Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same and the information and data contained therein and evidenced thereby are satisfactory to CompanyBuyer;
(c) reviewed all applicable laws, ordinances, rules and governmental regulations (including, but not limited to, those relating to building, zoning and land use) affecting the development, use, occupancy or enjoyment of the Real Property, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer; and
(cd) at its own cost and expense, made its own independent investigation respecting the Property, the Defeasance Security, the Interests Property and all other aspects of this transaction, and shall have relied thereon and on the advice of its consultants in entering into this Agreement, and Company Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to CompanyBuyer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR SELLER’S REPRESENTATIONS AND WARRANTIES IN SECTION 11.1 OF THIS AGREEMENT AND ANY WARRANTIES OF TITLE CONTAINED IN ANY INSTRUMENTS THE DEED DELIVERED BY SELLER IN CONNECTION WITH AT THE CLOSING AND SELLER’S COVENANTS HEREIN AND THEREIN CLOSE OF ESCROW (“SELLER’S WARRANTIES”), THIS SALE IS MADE AND WILL BE MADE WITHOUT REPRESENTATION, COVENANT, OR WARRANTY OF ANY KIND (WHETHER EXPRESS, IMPLIED, OR, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STATUTORY) BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, COMPANY BUYER AGREES TO ACCEPT THE INTERESTS AND THE OWNER’S INTEREST IN THE PROPERTY AND DEFEASANCE SECURITY ON AN “AS IS” AND “WHERE IS” BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION OR WARRANTY, ALL OF WHICH SELLER HEREBY DISCLAIMS, EXCEPT FOR SELLER’S WARRANTIES. EXCEPT FOR SELLER’S WARRANTIES, NO WARRANTY OR REPRESENTATION IS MADE BY SELLER AS TO FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, QUALITY, CONDITION, OPERATION OR INCOME, COMPLIANCE WITH DRAWINGS OR SPECIFICATIONS, ABSENCE OF DEFECTS, ABSENCE OF HAZARDOUS OR TOXIC SUBSTANCES, ABSENCE OF FAULTS, FLOODING, OR COMPLIANCE WITH LAWS AND REGULATIONS INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO HEALTH, SAFETY, AND THE ENVIRONMENT (INCLUDING, WITHOUT LIMITATION, THE ADA). COMPANY BUYER ACKNOWLEDGES THAT COMPANY BUYER HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS OWN INVESTIGATION OF THE INTERESTS, THE OWNERS AND THE ENTITY DOCUMENTS AND THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND DEFEASANCE SECURITY AND THAT COMPANY BUYER IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER’S BEHALF CONCERNING THE PROPERTY, THE DEFEASANCE SECURITY, THE INTERESTS, THE OWNERS OR THE ENTITY DOCUMENTS, EXCEPT AS EXPRESSLY PROVIDED IN THE SELLER’S WARRANTIES. ADDITIONALLY, COMPANY BUYER AND SELLER HEREBY AGREE THAT (A) EXCEPT FOR SELLER’S WARRANTIES, COMPANY BUYER IS TAKING THE INTERESTS AND ITS INDIRECT INTERESTS IN THE PROPERTY AND DEFEASANCE SECURITY “AS IS” WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER’S WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY, THE DEFEASANCE SECURITY OR THE INTERESTS ARE PROPERTY IS FIT FOR A PARTICULAR PURPOSE, (B) EXCEPT FOR SELLER’S WARRANTIES, COMPANY BUYER IS SOLELY RELYING UPON ITS OPPORTUNITY TO HAVE CONDUCTED AN EXAMINATION OF THE PROPERTY, THE DEFEASANCE SECURITY, THE INTERESTS, THE OWNERS AND THE OPERATING AGREEMENTS, AND (C) COMPANY BUYER TAKES THE PROPERTY, THE DEFEASANCE SECURITY AND THE INTERESTS PROPERTY UNDER THIS AGREEMENT UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR THE LIMITED WARRANTIES OF TITLE SET FORTH IN THE DEED AND SELLER’S WARRANTIES). WITH RESPECT TO THE FOLLOWING, COMPANY BUYER FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR SELLER’S WARRANTIES, THAT SELLER SHALL NOT HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY OF ANY KIND AND THAT SELLER HAS NOT MADE ANY NO REPRESENTATIONS OR WARRANTIES OF ANY KIND:
1. THE CONTENT OR ACCURACY OF ANY REPORT, STUDY, OPINION OR CONCLUSION OF ANY SOILS, TOXIC, ENVIRONMENTAL OR OTHER ENGINEER OR OTHER PERSON OR ENTITY WHO HAS EXAMINED THE PROPERTY OR ANY ASPECT THEREOF;
2. THE CONTENT OR ACCURACY OF ANY OF THE ITEMS (INCLUDING, WITHOUT LIMITATION, THE ENTITY DOCUMENTSPROPERTY INFORMATION) DELIVERED TO COMPANY BUYER PURSUANT TO COMPANYBUYER’S REVIEW OF THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS AND THE CONDITION OF THE PROPERTY AND DEFEASANCE SECURITYPROPERTY; OR
3. THE CONTENT OR ACCURACY OF ANY PROJECTION, FINANCIAL OR MARKETING ANALYSIS OR OTHER INFORMATION GIVEN TO COMPANY BUYER BY SELLER OR REVIEWED BY COMPANY BUYER WITH RESPECT TO THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS OR THE PROPERTY AND DEFEASANCE SECURITYPROPERTY. COMPANY BUYER ALSO ACKNOWLEDGES THAT THE REAL PROPERTY MAY OR MAY NOT CONTAIN ASBESTOS AND, IF THE REAL PROPERTY CONTAINS ASBESTOS, THAT THE OWNER BUYER MAY OR MAY NOT BE REQUIRED TO REMEDIATE ANY ASBESTOS CONDITION IN ACCORDANCE WITH APPLICABLE LAW. COMPANY BUYER IS A SOPHISTICATED REAL ESTATE INVESTOR AND IS, OR WILL BE AS OF THE EXPIRATION CLOSE OF THE FINANCING CONTINGENCY PERIODESCROW, FAMILIAR WITH THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS, THE DEFEASANCE SECURITY AND THE REAL PROPERTY AND ITS SUITABILITY FOR COMPANYBUYER’S INTENDED USE. THE PROVISIONS OF THIS SECTION 11.2 SHALL SURVIVE INDEFINITELY ANY CLOSING OR TERMINATION OF THIS AGREEMENT AND SHALL NOT BE MERGED INTO THE DOCUMENTS EXECUTED AT CLOSING. ADDITIONALLY, COMPANY COVENANTS THAT, FOLLOWING THE CLOSING, OTHER THAN WITH RESPECT TO CLAIMS TO THE EXTENT ARISING FROM SELLER’S BREACH CLOSE OF SELLER’S WARRANTIES TO THE EXTENT THE SAME SURVIVE THE CLOSING OR ANY OTHER INDEMNITIES OR OTHER PROVISIONS OF THIS AGREEMENT THAT SHALL SPECIFICALLY SURVIVE THE CLOSING, COMPANY SHALL NOT, AND SHALL NOT PERMIT ITS AFFILIATES, TO COMMENCE ANY CLAIM, LITIGATION OR OTHER ACTION AGAINST SELLER, OR ITS AFFILIATES, FOR ANY CLAIMS ASSOCIATED WITH THE INTERESTS, THE OWNERS OR THE PROPERTY AND DEFEASANCE SECURITY, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS RELATING TO THE VALUATION, MARKETABILITY, UTILITY, OR PHYSICAL OR ENVIRONMENTAL CONDITION THEREOF. /s/ Authorized Signatory COMPANY'S INITIALSESCROW.
Appears in 1 contract
AS-IS. If this Agreement is not terminated pursuant to As of the terms expiration of Section 4.3.2 hereofthe Due Diligence Period, except for the Seller's Warranties (as hereinafter defined), the Company Buyer will be deemed to have had the opportunity to have:
(a) examined and inspected the Property and Defeasance Security and Company shall be deemed to will know and be satisfied with the physical condition, quality, quantity and state of repair of the Property and Defeasance Security in all respects (including, without limitation, the compliance of the Real Property with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any comparable local or state laws (collectively, the “ADA”)) and by proceeding with this transaction following the expiration of the Due Diligence Period shall be deemed to have determined that the same is satisfactory to Buyer;
(b) reviewed the Entity Documents Property Information and all instruments, records and documents which Company Buyer deems appropriate or advisable to review in connection with this transaction, including, but not by way of limitation, any and all documentation relating to the Interests, any and all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees relating to the Real Property or the business conducted thereon, and Company any documentation relating to the Interests, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same and the information and data contained therein and evidenced thereby are satisfactory to CompanyBuyer;
(c) reviewed all applicable laws, ordinances, rules and governmental regulations (including, but not limited to, those relating to building, zoning and land use) affecting the development, use, occupancy or enjoyment of the Real Property, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer; and
(cd) at its own cost and expense, made its own independent investigation respecting the Property, Interests and/or the Defeasance Security, the Interests Property and all other aspects of this transaction, and shall have relied thereon and on the advice of its consultants in entering into this Agreement, and Company Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to CompanyBuyer; provided, however, the foregoing shall not be deemed to relieve Seller of its continuing covenants and obligations in this Agreement between the Effective Date and the Close of Escrow with respect to the Property (including, without limitation, with respect to title), nor shall the foregoing in any way impair Buyer’s ability to rely on Seller’s representations and warranties set forth in this Agreement with respect to the purchase of the Interests from Seller. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR SELLER’S COVENANTS AND OBLIGATIONS EXPRESSLY STATED IN THIS AGREEMENT AND SELLER’S REPRESENTATIONS AND WARRANTIES IN SECTION 11.1 OF THIS AGREEMENT AND IN ANY INSTRUMENTS EXECUTED DOCUMENT DELIVERED BY SELLER IN CONNECTION WITH TO BUYER AT THE CLOSING AND SELLER’S COVENANTS HEREIN AND THEREIN CLOSE OF ESCROW (“SELLER’S COVENANTS AND WARRANTIES”), THIS SALE IS MADE AND WILL BE MADE WITHOUT REPRESENTATION, COVENANT, OR WARRANTY OF ANY KIND (WHETHER EXPRESS, IMPLIED, OR, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STATUTORY) BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, COMPANY BUYER AGREES TO ACCEPT THE INTERESTS AND THE OWNER’S PROPERTY OWNERS’ INTEREST IN THE PROPERTY AND DEFEASANCE SECURITY ON AN “AS IS” AND “WHERE IS” BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION OR WARRANTY, ALL OF WHICH SELLER HEREBY DISCLAIMS, EXCEPT FOR SELLER’S COVENANTS AND WARRANTIES. EXCEPT FOR SELLER’S COVENANTS AND WARRANTIES, NO WARRANTY OR REPRESENTATION IS MADE BY SELLER AS TO FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, QUALITY, CONDITION, OPERATION OR INCOME, COMPLIANCE WITH DRAWINGS OR SPECIFICATIONS, ABSENCE OF DEFECTS, ABSENCE OF HAZARDOUS OR TOXIC SUBSTANCES, ABSENCE OF FAULTS, FLOODING, OR COMPLIANCE WITH LAWS AND REGULATIONS INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO HEALTH, SAFETY, AND THE ENVIRONMENT (INCLUDING, WITHOUT LIMITATION, THE ADA). COMPANY EXCEPT FOR SELLER’S COVENANTS AND WARRANTIES, BUYER ACKNOWLEDGES THAT COMPANY BUYER HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS OWN INVESTIGATION OF THE INTERESTS, THE PROPERTY OWNERS AND THE ENTITY DOCUMENTS AND THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND DEFEASANCE SECURITY AND THAT COMPANY BUYER IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER’S BEHALF CONCERNING THE PROPERTY, THE DEFEASANCE SECURITY, THE INTERESTS, THE PROPERTY OWNERS OR THE ENTITY DOCUMENTS, EXCEPT AS EXPRESSLY PROVIDED IN THE SELLER’S WARRANTIES. ADDITIONALLY, COMPANY BUYER AND SELLER HEREBY AGREE THAT (A) EXCEPT FOR SELLER’S COVENANTS AND WARRANTIES, COMPANY BUYER IS TAKING THE INTERESTS AND ITS INDIRECT INTERESTS THE PROPERTY OWNERS’ INTEREST IN THE PROPERTY AND DEFEASANCE SECURITY “AS IS” WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER’S COVENANTS AND WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY, THE DEFEASANCE SECURITY OR THE INTERESTS ARE PROPERTY IS FIT FOR A PARTICULAR PURPOSE, (B) EXCEPT FOR SELLER’S COVENANTS AND WARRANTIES, COMPANY BUYER IS SOLELY RELYING UPON ITS OPPORTUNITY TO HAVE CONDUCTED AN EXAMINATION OF THE PROPERTY, THE DEFEASANCE SECURITY, THE INTERESTS, THE OWNERS AND THE OPERATING AGREEMENTS, AND (C) COMPANY EXCEPT FOR SELLER’S COVENANTS AND WARRANTIES, BUYER TAKES THE PROPERTY, THE DEFEASANCE SECURITY INTERESTS AND THE PROPERTY OWNERS’ INTERESTS IN THE PROPERTY UNDER THIS AGREEMENT UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR SELLER’S COVENANTS AND WARRANTIES). WITH RESPECT TO THE FOLLOWING, COMPANY AND EXCEPT FOR SELLER’S COVENANTS AND WARRANTIES, BUYER FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR SELLER’S WARRANTIES, THAT NEITHER SELLER NOR THE PROPERTY OWNERS SHALL NOT HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY OF ANY KIND AND THAT NEITHER SELLER HAS NOT NOR THE PROPERTY OWNERS HAVE MADE ANY REPRESENTATIONS OR WARRANTIES OF ANY KINDKIND RELATING TO:
1. THE CONTENT OR ACCURACY OF ANY REPORT, STUDY, OPINION OR CONCLUSION OF ANY SOILS, TOXIC, ENVIRONMENTAL OR OTHER ENGINEER OR OTHER PERSON OR ENTITY WHO HAS EXAMINED THE PROPERTY OR ANY ASPECT THEREOF;
2. THE CONTENT OR ACCURACY OF ANY OF THE ITEMS (INCLUDING, WITHOUT LIMITATION, THE ENTITY DOCUMENTSPROPERTY INFORMATION) DELIVERED TO COMPANY BUYER PURSUANT TO COMPANYBUYER’S REVIEW OF THE INTERESTS, THE OWNER AND PROPERTY OWNERS, THE ENTITY DOCUMENTS AND THE CONDITION OF THE PROPERTY AND DEFEASANCE SECURITYPROPERTY; OR
3. THE CONTENT OR ACCURACY OF ANY PROJECTION, FINANCIAL OR MARKETING ANALYSIS OR OTHER INFORMATION GIVEN TO COMPANY BUYER BY SELLER OR REVIEWED BY COMPANY BUYER WITH RESPECT TO THE INTERESTS, THE OWNER AND PROPERTY OWNERS, THE ENTITY DOCUMENTS OR THE PROPERTY AND DEFEASANCE SECURITYPROPERTY. COMPANY BUYER ALSO ACKNOWLEDGES THAT THE REAL PROPERTY MAY OR MAY NOT CONTAIN ASBESTOS AND, IF THE REAL PROPERTY CONTAINS ASBESTOS, THAT THE OWNER BUYER MAY OR MAY NOT BE REQUIRED TO REMEDIATE ANY ASBESTOS CONDITION IN ACCORDANCE WITH APPLICABLE LAW. COMPANY BUYER IS A SOPHISTICATED REAL ESTATE INVESTOR AND IS, OR WILL BE AS OF THE EXPIRATION CLOSE OF THE FINANCING CONTINGENCY PERIODESCROW, FAMILIAR WITH THE INTERESTS, THE OWNER AND PROPERTY OWNERS, THE ENTITY DOCUMENTS, THE DEFEASANCE SECURITY DOCUMENTS AND THE REAL PROPERTY AND ITS SUITABILITY FOR COMPANYBUYER’S INTENDED USE. THE PROVISIONS OF THIS SECTION 11.2 SHALL SURVIVE INDEFINITELY ANY CLOSING OR TERMINATION OF THIS AGREEMENT AND SHALL NOT BE MERGED INTO THE DOCUMENTS EXECUTED AT CLOSING. ADDITIONALLY, COMPANY COVENANTS THAT, FOLLOWING THE CLOSING, OTHER THAN WITH RESPECT TO CLAIMS TO THE EXTENT ARISING FROM SELLER’S BREACH CLOSE OF SELLER’S WARRANTIES TO THE EXTENT THE SAME SURVIVE THE CLOSING OR ANY OTHER INDEMNITIES OR OTHER PROVISIONS OF THIS AGREEMENT THAT SHALL SPECIFICALLY SURVIVE THE CLOSING, COMPANY SHALL NOT, AND SHALL NOT PERMIT ITS AFFILIATES, TO COMMENCE ANY CLAIM, LITIGATION OR OTHER ACTION AGAINST SELLER, OR ITS AFFILIATES, FOR ANY CLAIMS ASSOCIATED WITH THE INTERESTS, THE OWNERS OR THE PROPERTY AND DEFEASANCE SECURITY, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS RELATING TO THE VALUATION, MARKETABILITY, UTILITY, OR PHYSICAL OR ENVIRONMENTAL CONDITION THEREOF. /s/ Authorized Signatory COMPANY'S INITIALSESCROW.
Appears in 1 contract
Sources: Membership Interest Purchase and Sale Agreement (KBS Real Estate Investment Trust II, Inc.)
AS-IS. If this Agreement is not terminated pursuant to As of the terms expiration of Section 4.3.2 hereofthe Due Diligence Period, except for the Seller's Warranties (as hereinafter defined), the Company Buyer will be deemed to have had the opportunity to have:
(a) examined and inspected the Property and Defeasance Security and Company shall be deemed to will know and be satisfied with the physical condition, quality, quantity and state of repair of the Property and Defeasance Security in all respects (including, without limitation, the compliance of the Real Property with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any comparable local or state laws (collectively, the “ADA”)) and by proceeding with this transaction following the expiration of the Due Diligence Period shall be deemed to have determined that the same is satisfactory to Buyer;
(b) reviewed the Entity Documents Property Information and all instruments, records and documents which Company Buyer deems appropriate or advisable to review in connection with this transaction, including, but not by way of limitation, any and all documentation relating to the Interests, any and all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees relating to the Real Property or the business conducted thereon, and Company Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same and the information and data contained therein and evidenced thereby are satisfactory to CompanyBuyer;
(c) reviewed all applicable laws, ordinances, rules and governmental regulations (including, but not limited to, those relating to building, zoning and land use) affecting the development, use, occupancy or enjoyment of the Real Property, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer; and
(cd) at its own cost and expense, made its own independent investigation respecting the Property, the Defeasance Security, the Interests Property and all other aspects of this transaction, and shall have relied thereon and on the advice of its consultants in entering into this Agreement, and Company Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to CompanyBuyer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR SELLER’S REPRESENTATIONS AND WARRANTIES IN SECTION 11.1 OF THIS AGREEMENT AND ANY WARRANTIES OF TITLE CONTAINED IN ANY INSTRUMENTS THE DEED DELIVERED BY SELLER IN CONNECTION WITH AT THE CLOSING AND SELLER’S COVENANTS HEREIN AND THEREIN CLOSE OF ESCROW (“SELLER’S WARRANTIES”), THIS SALE IS MADE AND WILL BE MADE WITHOUT REPRESENTATION, COVENANT, OR WARRANTY OF ANY KIND (WHETHER EXPRESS, IMPLIED, OR, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STATUTORY) BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, COMPANY BUYER AGREES TO ACCEPT THE INTERESTS AND THE OWNER’S INTEREST IN THE PROPERTY AND DEFEASANCE SECURITY ON AN “AS IS” AND “WHERE IS” BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION OR WARRANTY, ALL OF WHICH SELLER HEREBY DISCLAIMS, EXCEPT FOR SELLER’S WARRANTIES. EXCEPT FOR SELLER’S WARRANTIES, NO WARRANTY OR REPRESENTATION IS MADE BY SELLER AS TO FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, QUALITY, CONDITION, OPERATION OR INCOME, COMPLIANCE WITH DRAWINGS OR SPECIFICATIONS, ABSENCE OF DEFECTS, ABSENCE OF HAZARDOUS OR TOXIC SUBSTANCES, ABSENCE OF FAULTS, FLOODING, OR COMPLIANCE WITH LAWS AND REGULATIONS INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO HEALTH, SAFETY, AND THE ENVIRONMENT (INCLUDING, WITHOUT LIMITATION, THE ADA). COMPANY BUYER ACKNOWLEDGES THAT COMPANY ▇▇▇▇▇ HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS OWN INVESTIGATION OF THE INTERESTS, THE OWNERS AND THE ENTITY DOCUMENTS AND THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND DEFEASANCE SECURITY AND THAT COMPANY BUYER IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER’S BEHALF CONCERNING THE PROPERTY, THE DEFEASANCE SECURITY, THE INTERESTS, THE OWNERS OR THE ENTITY DOCUMENTS, EXCEPT AS EXPRESSLY PROVIDED IN THE SELLER’S WARRANTIES. ADDITIONALLY, COMPANY BUYER AND SELLER HEREBY AGREE THAT (A) EXCEPT FOR SELLER’S WARRANTIES, COMPANY BUYER IS TAKING THE INTERESTS AND ITS INDIRECT INTERESTS IN THE PROPERTY AND DEFEASANCE SECURITY “AS IS” WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER’S WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY, THE DEFEASANCE SECURITY OR THE INTERESTS ARE PROPERTY IS FIT FOR A PARTICULAR PURPOSE, (B) EXCEPT FOR SELLER’S WARRANTIES, COMPANY BUYER IS SOLELY RELYING UPON ITS OPPORTUNITY TO HAVE CONDUCTED AN EXAMINATION OF THE PROPERTY, THE DEFEASANCE SECURITY, THE INTERESTS, THE OWNERS AND THE OPERATING AGREEMENTS, AND (C) COMPANY BUYER TAKES THE PROPERTY, THE DEFEASANCE SECURITY AND THE INTERESTS PROPERTY UNDER THIS AGREEMENT UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR THE LIMITED WARRANTIES OF TITLE SET FORTH IN THE DEED AND SELLER’S WARRANTIES). WITH RESPECT TO THE FOLLOWING, COMPANY ▇▇▇▇▇ FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR SELLER’S WARRANTIES, THAT SELLER SHALL NOT HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY OF ANY KIND AND THAT SELLER HAS NOT MADE ANY NO REPRESENTATIONS OR WARRANTIES OF ANY KIND:
1. THE CONTENT OR ACCURACY OF ANY REPORT, STUDY, OPINION OR CONCLUSION OF ANY SOILS, TOXIC, ENVIRONMENTAL OR OTHER ENGINEER OR OTHER PERSON OR ENTITY WHO HAS EXAMINED THE PROPERTY OR ANY ASPECT THEREOF;
2. THE CONTENT OR ACCURACY OF ANY OF THE ITEMS (INCLUDING, WITHOUT LIMITATION, THE ENTITY DOCUMENTSPROPERTY INFORMATION) DELIVERED TO COMPANY BUYER PURSUANT TO COMPANYBUYER’S REVIEW OF THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS AND THE CONDITION OF THE PROPERTY AND DEFEASANCE SECURITYPROPERTY; OR
3. THE CONTENT OR ACCURACY OF ANY PROJECTION, FINANCIAL OR MARKETING ANALYSIS OR OTHER INFORMATION GIVEN TO COMPANY BUYER BY SELLER OR REVIEWED BY COMPANY BUYER WITH RESPECT TO THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS OR THE PROPERTY AND DEFEASANCE SECURITYPROPERTY. COMPANY ▇▇▇▇▇ ALSO ACKNOWLEDGES THAT THE REAL PROPERTY MAY OR MAY NOT CONTAIN ASBESTOS AND, IF THE REAL PROPERTY CONTAINS ASBESTOS, THAT THE OWNER BUYER MAY OR MAY NOT BE REQUIRED TO REMEDIATE ANY ASBESTOS CONDITION IN ACCORDANCE WITH APPLICABLE LAW. COMPANY BUYER IS A SOPHISTICATED REAL ESTATE INVESTOR AND IS, OR WILL BE AS OF THE EXPIRATION CLOSE OF THE FINANCING CONTINGENCY PERIODESCROW, FAMILIAR WITH THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS, THE DEFEASANCE SECURITY AND THE REAL PROPERTY AND ITS SUITABILITY FOR COMPANYBUYER’S INTENDED USE. THE PROVISIONS OF THIS SECTION 11.2 SHALL SURVIVE INDEFINITELY ANY CLOSING OR TERMINATION OF THIS AGREEMENT AND SHALL NOT BE MERGED INTO THE DOCUMENTS EXECUTED AT CLOSING. ADDITIONALLY, COMPANY COVENANTS THAT, FOLLOWING THE CLOSING, OTHER THAN WITH RESPECT TO CLAIMS TO THE EXTENT ARISING FROM SELLER’S BREACH CLOSE OF SELLER’S WARRANTIES TO THE EXTENT THE SAME SURVIVE THE CLOSING OR ANY OTHER INDEMNITIES OR OTHER PROVISIONS OF THIS AGREEMENT THAT SHALL SPECIFICALLY SURVIVE THE CLOSING, COMPANY SHALL NOT, AND SHALL NOT PERMIT ITS AFFILIATES, TO COMMENCE ANY CLAIM, LITIGATION OR OTHER ACTION AGAINST SELLER, OR ITS AFFILIATES, FOR ANY CLAIMS ASSOCIATED WITH THE INTERESTS, THE OWNERS OR THE PROPERTY AND DEFEASANCE SECURITY, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS RELATING TO THE VALUATION, MARKETABILITY, UTILITY, OR PHYSICAL OR ENVIRONMENTAL CONDITION THEREOFESCROW. /s/ Authorized Signatory COMPANY'S BAK BUYER’S INITIALS
Appears in 1 contract
Sources: Purchase and Sale Agreement (KBS Growth & Income REIT, Inc.)
AS-IS. If this Agreement is not terminated pursuant to As of the terms expiration of Section 4.3.2 hereofthe Due Diligence Period, except for the Seller's Warranties (as hereinafter defined), the Company will be deemed to have had the opportunity to Purchaser shall have:
(a) examined and inspected the Property Property, and Defeasance Security and Company shall be deemed to know and be satisfied with the physical condition, quality, quantity and state of repair of the Property and Defeasance Security in all respects (including, without limitation, the compliance of the Real Property with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any comparable local or state laws laws, as amended (collectively, the “ADA”)), and by proceeding with this transaction following the expiration of the Due Diligence Period shall be deemed to have determined that the same is satisfactory to Purchaser;
(b) reviewed the Entity Documents Property Information and all instruments, records and documents which Company Purchaser deems appropriate or advisable to review in connection with this transaction, including, but not by way of without limitation, any and all documentation relating to the Interests, any and all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees guaranties relating to the Real Property or the business conducted thereon, and Company Purchaser, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same and the information and data contained therein and evidenced thereby are satisfactory to CompanyPurchaser;
(c) reviewed all applicable laws, ordinances, rules and governmental regulations (including, but not limited to, those relating to building, zoning and land use) affecting the development, use, occupancy or enjoyment of the Real Property, and Purchaser, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Purchaser; and
(cd) at its own cost and expense, made its own independent investigation respecting the Property, the Defeasance Security, the Interests Property and all other aspects of this transaction, and shall have relied thereon and on the advice of its consultants in entering into this Agreement, and Company Purchaser, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to CompanyPurchaser. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR SELLER’S REPRESENTATIONS AND WARRANTIES IN SECTION 11.1 OF THIS AGREEMENT AND ANY WARRANTIES OF TITLE CONTAINED IN ANY INSTRUMENTS THE DEED DELIVERED BY SELLER IN CONNECTION WITH AT THE CLOSING AND SELLER’S COVENANTS HEREIN AND THEREIN CLOSE OF ESCROW (“SELLER’S WARRANTIES”), THIS SALE IS MADE AND WILL SHALL BE MADE WITHOUT REPRESENTATION, COVENANT, COVENANT OR WARRANTY OF ANY KIND (WHETHER EXPRESS, IMPLIED, IMPLIED OR, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STATUTORY) BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, COMPANY AGREES TO PURCHASER SHALL ACCEPT THE INTERESTS AND THE OWNER’S INTEREST IN THE PROPERTY AND DEFEASANCE SECURITY ON AN “AS IS” AND “WHERE IS” BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION OR WARRANTY, ALL OF WHICH SELLER HEREBY DISCLAIMS, EXCEPT FOR SELLER’S WARRANTIES. EXCEPT FOR SELLER’S WARRANTIES, NO WARRANTY OR REPRESENTATION IS MADE BY SELLER AS TO FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, QUALITY, CONDITION, OPERATION OR INCOME, COMPLIANCE WITH DRAWINGS OR SPECIFICATIONS, ABSENCE OF DEFECTS, ABSENCE OF HAZARDOUS OR TOXIC SUBSTANCES, ABSENCE OF FAULTS, FLOODING, OR COMPLIANCE WITH LAWS AND REGULATIONS INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO HEALTH, SAFETY, SAFETY AND THE ENVIRONMENT (INCLUDING, WITHOUT LIMITATION, THE ADA)) . COMPANY PURCHASER ACKNOWLEDGES THAT COMPANY THAT, EXCEPT FOR SELLER’S WARRANTIES, PURCHASER HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS OWN INVESTIGATION OF THE INTERESTS, THE OWNERS AND THE ENTITY DOCUMENTS AND THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, COMPLIANCE AND LEGAL CONDITION OF THE PROPERTY AND DEFEASANCE SECURITY AND THAT COMPANY PURCHASER IS NOT NOW RELYING, AND WILL SHALL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER’S BEHALF CONCERNING THE PROPERTY, THE DEFEASANCE SECURITY, THE INTERESTS, THE OWNERS OR THE ENTITY DOCUMENTS, EXCEPT AS EXPRESSLY PROVIDED IN THE SELLER’S WARRANTIES. ADDITIONALLY, COMPANY PURCHASER AND SELLER HEREBY AGREE THAT (A) EXCEPT FOR SELLER’S WARRANTIES, COMPANY PURCHASER IS TAKING THE INTERESTS AND ITS INDIRECT INTERESTS IN THE PROPERTY AND DEFEASANCE SECURITY “AS IS” WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER’S WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY, THE DEFEASANCE SECURITY OR THE INTERESTS ARE PROPERTY IS FIT FOR A PARTICULAR PURPOSE, (B) EXCEPT FOR SELLER’S WARRANTIES, COMPANY PURCHASER IS SOLELY RELYING UPON ITS OPPORTUNITY TO HAVE CONDUCTED AN EXAMINATION OF THE PROPERTY, THE DEFEASANCE SECURITY, THE INTERESTS, THE OWNERS AND THE OPERATING AGREEMENTS, AND (C) COMPANY PURCHASER TAKES THE PROPERTY, THE DEFEASANCE SECURITY AND THE INTERESTS PROPERTY UNDER THIS AGREEMENT UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (WARRANTIES, EXCEPT FOR SELLER’S WARRANTIES). WITH RESPECT TO THE FOLLOWING, COMPANY PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR SELLER’S WARRANTIES, THAT SELLER SHALL NOT HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY OF ANY KIND AND THAT SELLER HAS NOT MADE ANY NO REPRESENTATIONS OR WARRANTIES OF ANY KIND:
1. : THE CONTENT OR ACCURACY OF ANY REPORT, STUDY, OPINION OR CONCLUSION OF ANY SOILS, TOXIC, ENVIRONMENTAL OR OTHER ENGINEER OR OTHER PERSON OR ENTITY WHO HAS EXAMINED THE PROPERTY OR ANY ASPECT THEREOF;
2. ; THE CONTENT OR ACCURACY OF ANY OF THE ITEMS (INCLUDING, WITHOUT LIMITATION, THE ENTITY DOCUMENTSPROPERTY INFORMATION) DELIVERED TO COMPANY PURCHASER PURSUANT TO COMPANYPURCHASER’S REVIEW OF THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS AND THE CONDITION OF THE PROPERTY PROPERTY; AND DEFEASANCE SECURITY; OR
3. THE CONTENT OR ACCURACY OF ANY PROJECTION, FINANCIAL OR MARKETING ANALYSIS OR OTHER INFORMATION GIVEN TO COMPANY PURCHASER BY SELLER OR REVIEWED BY COMPANY PURCHASER WITH RESPECT TO THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS OR THE PROPERTY AND DEFEASANCE SECURITYPROPERTY. COMPANY ALSO ACKNOWLEDGES THAT THE REAL PROPERTY MAY OR MAY NOT CONTAIN ASBESTOS AND, IF THE REAL PROPERTY CONTAINS ASBESTOS, THAT THE OWNER MAY OR MAY NOT BE REQUIRED TO REMEDIATE ANY ASBESTOS CONDITION IN ACCORDANCE WITH APPLICABLE LAW. COMPANY PURCHASER IS A SOPHISTICATED REAL ESTATE INVESTOR AND IS, OR WILL SHALL BE AS OF THE EXPIRATION CLOSE OF THE FINANCING CONTINGENCY PERIODESCROW, FAMILIAR WITH THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS, THE DEFEASANCE SECURITY AND THE REAL PROPERTY AND ITS SUITABILITY FOR COMPANYPURCHASER’S INTENDED USE. THE PROVISIONS OF THIS SECTION 11.2 SHALL SURVIVE INDEFINITELY ANY CLOSING OR TERMINATION OF THIS AGREEMENT AND SHALL NOT BE MERGED INTO THE DOCUMENTS EXECUTED AT CLOSING. ADDITIONALLY, COMPANY COVENANTS THAT, FOLLOWING THE CLOSING, OTHER THAN WITH RESPECT TO CLAIMS TO THE EXTENT ARISING FROM SELLER’S BREACH CLOSE OF SELLER’S WARRANTIES TO THE EXTENT THE SAME SURVIVE THE CLOSING OR ANY OTHER INDEMNITIES OR OTHER PROVISIONS OF THIS AGREEMENT THAT SHALL SPECIFICALLY SURVIVE THE CLOSING, COMPANY SHALL NOT, AND SHALL NOT PERMIT ITS AFFILIATES, TO COMMENCE ANY CLAIM, LITIGATION OR OTHER ACTION AGAINST SELLER, OR ITS AFFILIATES, FOR ANY CLAIMS ASSOCIATED WITH THE INTERESTS, THE OWNERS OR THE PROPERTY AND DEFEASANCE SECURITY, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS RELATING TO THE VALUATION, MARKETABILITY, UTILITY, OR PHYSICAL OR ENVIRONMENTAL CONDITION THEREOF. /s/ Authorized Signatory COMPANY'S INITIALSESCROW.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Inland Western Retail Real Estate Trust Inc)
AS-IS. If this Agreement is not terminated pursuant to As of the terms expiration of Section 4.3.2 hereofthe Due Diligence Period, except for the Seller's Warranties (as hereinafter defined), the Company Buyer will be deemed to have had the opportunity to have:
(a) examined and inspected the Property and Defeasance Security and Company shall be deemed to will know and be satisfied with the physical condition, quality, quantity and state of repair of the Property and Defeasance Security in all respects (including, without limitation, the compliance of the Real Property with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any comparable local or state laws (collectively, the “ADA”)) and by proceeding with this transaction following the expiration of the Due Diligence Period shall be deemed to have determined that the same is satisfactory to Buyer;
(b) reviewed the Entity Documents Property Information and all instruments, records and documents which Company Buyer deems appropriate or advisable to review in connection with this transaction, including, but not by way of limitation, any and all documentation relating to the Interests, any and all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees relating to the Real Property or the business conducted thereon, and Company Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same and the information and data contained therein and evidenced thereby are satisfactory to CompanyBuyer;
(c) reviewed all applicable laws, ordinances, rules and governmental regulations (including, but not limited to, those relating to building, zoning and land use) affecting the development, use, occupancy or enjoyment of the Real Property, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer; and
(cd) at its own cost and expense, made its own independent investigation respecting the Property, the Defeasance Security, the Interests Property and all other aspects of this transaction, and shall have relied thereon and on the advice of its consultants in entering into this Agreement, and Company Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to CompanyBuyer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR SELLER’S REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN SECTION 11.1 OF THIS AGREEMENT AND IN ANY INSTRUMENTS DELIVERED BY SELLER THE DOCUMENTS EXECUTED IN CONNECTION WITH THE CLOSING AND SELLER’S COVENANTS HEREIN AND THEREIN CLOSE OF ESCROW (“SELLER’S WARRANTIES”), THIS SALE IS MADE AND WILL BE MADE WITHOUT REPRESENTATION, COVENANT, OR WARRANTY OF ANY KIND (WHETHER EXPRESS, IMPLIED, OR, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STATUTORY) BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, COMPANY BUYER AGREES TO ACCEPT THE INTERESTS AND THE OWNER’S INTEREST IN THE PROPERTY AND DEFEASANCE SECURITY ON AN “AS IS” AND “WHERE IS” BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION OR WARRANTY, ALL OF WHICH SELLER HEREBY DISCLAIMS, EXCEPT FOR SELLER’S WARRANTIES. EXCEPT FOR SELLER’S WARRANTIES, NO WARRANTY OR REPRESENTATION IS MADE BY SELLER AS TO FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, QUALITY, CONDITION, OPERATION OR INCOME, COMPLIANCE WITH DRAWINGS OR SPECIFICATIONS, ABSENCE OF DEFECTS, ABSENCE OF HAZARDOUS OR TOXIC SUBSTANCES, ABSENCE OF FAULTS, FLOODING, OR COMPLIANCE WITH LAWS AND REGULATIONS INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO HEALTH, SAFETY, AND THE ENVIRONMENT (INCLUDING, WITHOUT LIMITATION, THE ADA). COMPANY BUYER ACKNOWLEDGES THAT COMPANY BUYER HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS OWN INVESTIGATION OF THE INTERESTS, THE OWNERS AND THE ENTITY DOCUMENTS AND THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND DEFEASANCE SECURITY AND THAT COMPANY BUYER IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER’S BEHALF CONCERNING THE PROPERTY, THE DEFEASANCE SECURITY, THE INTERESTS, THE OWNERS OR THE ENTITY DOCUMENTS, EXCEPT AS EXPRESSLY PROVIDED IN THE SELLER’S WARRANTIES. ADDITIONALLY, COMPANY BUYER AND SELLER HEREBY AGREE THAT (A) EXCEPT FOR SELLER’S WARRANTIES, COMPANY BUYER IS TAKING THE INTERESTS AND ITS INDIRECT INTERESTS IN THE PROPERTY AND DEFEASANCE SECURITY “AS IS” WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER’S WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY, THE DEFEASANCE SECURITY OR THE INTERESTS ARE PROPERTY IS FIT FOR A PARTICULAR PURPOSE, (B) EXCEPT FOR SELLER’S WARRANTIES, COMPANY BUYER IS SOLELY RELYING UPON ITS OPPORTUNITY TO HAVE CONDUCTED AN EXAMINATION OF THE PROPERTY, THE DEFEASANCE SECURITY, THE INTERESTS, THE OWNERS AND THE OPERATING AGREEMENTS, AND (C) COMPANY BUYER TAKES THE PROPERTY, THE DEFEASANCE SECURITY AND THE INTERESTS PROPERTY UNDER THIS AGREEMENT UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR THE LIMITED WARRANTIES OF TITLE SET FORTH IN THE DEED AND SELLER’S WARRANTIES). WITH RESPECT TO THE FOLLOWING, COMPANY BUYER FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR SELLER’S WARRANTIES, THAT SELLER SHALL NOT HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY OF ANY KIND AND THAT SELLER HAS NOT MADE ANY NO REPRESENTATIONS OR WARRANTIES OF ANY KIND:
1. THE CONTENT OR ACCURACY OF ANY REPORT, STUDY, OPINION OR CONCLUSION OF ANY SOILS, TOXIC, ENVIRONMENTAL OR OTHER ENGINEER OR OTHER PERSON OR ENTITY WHO HAS EXAMINED THE PROPERTY OR ANY ASPECT THEREOF;
2. THE CONTENT OR ACCURACY OF ANY OF THE ITEMS (INCLUDING, WITHOUT LIMITATION, THE ENTITY DOCUMENTSPROPERTY INFORMATION) DELIVERED TO COMPANY BUYER PURSUANT TO COMPANYBUYER’S REVIEW OF THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS AND THE CONDITION OF THE PROPERTY AND DEFEASANCE SECURITYPROPERTY; OR
3. THE CONTENT OR ACCURACY OF ANY PROJECTION, FINANCIAL OR MARKETING ANALYSIS OR OTHER INFORMATION GIVEN TO COMPANY BUYER BY SELLER OR REVIEWED BY COMPANY BUYER WITH RESPECT TO THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS OR THE PROPERTY AND DEFEASANCE SECURITYPROPERTY. COMPANY BUYER ALSO ACKNOWLEDGES THAT THE REAL PROPERTY MAY OR MAY NOT CONTAIN ASBESTOS AND, IF THE REAL PROPERTY CONTAINS ASBESTOS, THAT THE OWNER BUYER MAY OR MAY NOT BE REQUIRED TO REMEDIATE ANY ASBESTOS CONDITION IN ACCORDANCE WITH APPLICABLE LAW. COMPANY BUYER IS A SOPHISTICATED REAL ESTATE INVESTOR AND IS, OR WILL BE AS OF THE EXPIRATION CLOSE OF THE FINANCING CONTINGENCY PERIODESCROW, FAMILIAR WITH THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS, THE DEFEASANCE SECURITY AND THE REAL PROPERTY AND ITS SUITABILITY FOR COMPANYBUYER’S INTENDED USE. THE PROVISIONS OF THIS SECTION 11.2 SHALL SURVIVE INDEFINITELY ANY CLOSING OR TERMINATION OF THIS AGREEMENT AND SHALL NOT BE MERGED INTO THE DOCUMENTS EXECUTED AT CLOSINGCLOSE OF ESCROW. ADDITIONALLY, COMPANY COVENANTS THAT, FOLLOWING THE CLOSING, OTHER THAN WITH RESPECT TO CLAIMS TO THE EXTENT ARISING FROM SELLER/s/MW BUYER’S BREACH OF SELLER’S WARRANTIES TO THE EXTENT THE SAME SURVIVE THE CLOSING OR ANY OTHER INDEMNITIES OR OTHER PROVISIONS OF THIS AGREEMENT THAT SHALL SPECIFICALLY SURVIVE THE CLOSING, COMPANY SHALL NOT, AND SHALL NOT PERMIT ITS AFFILIATES, TO COMMENCE ANY CLAIM, LITIGATION OR OTHER ACTION AGAINST SELLER, OR ITS AFFILIATES, FOR ANY CLAIMS ASSOCIATED WITH THE INTERESTS, THE OWNERS OR THE PROPERTY AND DEFEASANCE SECURITY, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS RELATING TO THE VALUATION, MARKETABILITY, UTILITY, OR PHYSICAL OR ENVIRONMENTAL CONDITION THEREOF. /s/ Authorized Signatory COMPANY'S INITIALS
Appears in 1 contract
Sources: Purchase and Sale Agreement (KBS Real Estate Investment Trust II, Inc.)
AS-IS. If this Agreement is not terminated pursuant to As of the terms expiration of Section 4.3.2 hereofthe Due Diligence Period, except for the Seller's Warranties (as hereinafter defined), the Company Buyer will be deemed to have had the opportunity to have:
(a) examined and inspected the Property and Defeasance Security and Company shall be deemed to will know and be satisfied with the physical condition, quality, quantity and state of repair of the Property and Defeasance Security in all respects (including, without limitation, the compliance of the Real Property with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any comparable local or state laws (collectively, the “"ADA”)") and by proceeding with this transaction following the expiration of the Due Diligence Period shall be deemed to have determined that the same is satisfactory to Buyer;
(b) reviewed the Entity Documents Property Information and all instruments, records and documents which Company Buyer deems appropriate or advisable to review in connection with this transaction, including, but not by way of limitation, any and all documentation relating to the Interests, any and all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees relating to the Real Property or the business conducted thereon, and Company Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same and the information and data contained therein and evidenced thereby are satisfactory to CompanyBuyer;
(c) reviewed all applicable laws, ordinances, rules and governmental regulations (including, but not limited to, those relating to building, zoning and land use) affecting the development, use, occupancy or enjoyment of the Real Property, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer; and
(cd) at its own cost and expense, made its own independent investigation respecting the Property, the Defeasance Security, the Interests Property and all other aspects of this transaction, and shall have relied thereon and on the advice of its consultants in entering into this Agreement, and Company Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to CompanyBuyer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR SELLER’S 'S REPRESENTATIONS AND WARRANTIES IN SECTION 11.1 OF THIS AGREEMENT AND ANY WARRANTIES OF TITLE CONTAINED IN ANY INSTRUMENTS THE DEED DELIVERED BY SELLER IN CONNECTION WITH AT THE CLOSING AND CLOSE OF ESCROW ("SELLER’S COVENANTS HEREIN AND THEREIN (“SELLER’S 'S WARRANTIES”"), THIS SALE IS MADE AND WILL BE MADE WITHOUT REPRESENTATION, COVENANT, OR WARRANTY OF ANY KIND (WHETHER EXPRESS, IMPLIED, OR, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STATUTORY) BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, COMPANY BUYER AGREES TO ACCEPT THE INTERESTS AND THE OWNER’S INTEREST IN THE PROPERTY AND DEFEASANCE SECURITY ON AN “"AS IS” " AND “"WHERE IS” " BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION OR WARRANTY, ALL OF WHICH SELLER HEREBY DISCLAIMS, EXCEPT FOR SELLER’S 'S WARRANTIES. EXCEPT FOR SELLER’S 'S WARRANTIES, NO WARRANTY OR REPRESENTATION IS MADE BY SELLER AS TO FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, QUALITY, CONDITION, OPERATION OR INCOME, COMPLIANCE WITH DRAWINGS OR SPECIFICATIONS, ABSENCE OF DEFECTS, ABSENCE OF HAZARDOUS OR TOXIC SUBSTANCES, ABSENCE OF FAULTS, FLOODING, OR COMPLIANCE WITH LAWS AND REGULATIONS INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO HEALTH, SAFETY, AND THE ENVIRONMENT (INCLUDING, WITHOUT LIMITATION, THE ADA). COMPANY BUYER ACKNOWLEDGES THAT COMPANY BUYER HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS OWN INVESTIGATION OF THE INTERESTS, THE OWNERS AND THE ENTITY DOCUMENTS AND THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND DEFEASANCE SECURITY AND THAT COMPANY BUYER IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER’S 'S BEHALF CONCERNING THE PROPERTY, THE DEFEASANCE SECURITY, THE INTERESTS, THE OWNERS OR THE ENTITY DOCUMENTS, EXCEPT AS EXPRESSLY PROVIDED IN THE SELLER’S WARRANTIES. ADDITIONALLY, COMPANY BUYER AND SELLER HEREBY AGREE THAT (A) EXCEPT FOR SELLER’S 'S WARRANTIES, COMPANY BUYER IS TAKING THE INTERESTS AND ITS INDIRECT INTERESTS IN THE PROPERTY AND DEFEASANCE SECURITY “"AS IS” " WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER’S 'S WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY, THE DEFEASANCE SECURITY OR THE INTERESTS ARE PROPERTY IS FIT FOR A PARTICULAR PURPOSE, (B) EXCEPT FOR SELLER’S 'S WARRANTIES, COMPANY BUYER IS SOLELY RELYING UPON ITS OPPORTUNITY TO HAVE CONDUCTED AN EXAMINATION OF THE PROPERTY, THE DEFEASANCE SECURITY, THE INTERESTS, THE OWNERS AND THE OPERATING AGREEMENTS, AND (C) COMPANY BUYER TAKES THE PROPERTY, THE DEFEASANCE SECURITY AND THE INTERESTS PROPERTY UNDER THIS CONTRACT UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR THE LIMITED WARRANTIES OF TITLE SET FORTH IN THE DEED AND SELLER’S 'S WARRANTIES). WITH RESPECT TO THE FOLLOWING, COMPANY BUYER FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR SELLER’S WARRANTIES, THAT SELLER SHALL NOT HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY OF ANY KIND AND THAT SELLER HAS NOT MADE ANY NO REPRESENTATIONS OR WARRANTIES OF ANY KIND:
1. THE CONTENT OR ACCURACY OF ANY REPORT, STUDY, OPINION OR CONCLUSION OF ANY SOILS, TOXIC, ENVIRONMENTAL OR OTHER ENGINEER OR OTHER PERSON OR ENTITY WHO HAS EXAMINED THE PROPERTY OR ANY ASPECT THEREOF;
2. THE CONTENT OR ACCURACY OF ANY OF THE ITEMS (INCLUDING, WITHOUT LIMITATION, THE ENTITY DOCUMENTSPROPERTY INFORMATION) DELIVERED TO COMPANY BUYER PURSUANT TO COMPANY’S BUYER'S REVIEW OF THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS AND THE CONDITION OF THE PROPERTY AND DEFEASANCE SECURITYPROPERTY; OR
3. THE CONTENT OR ACCURACY OF ANY PROJECTION, FINANCIAL OR MARKETING ANALYSIS OR OTHER INFORMATION GIVEN TO COMPANY BUYER BY SELLER OR REVIEWED BY COMPANY BUYER WITH RESPECT TO THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS OR THE PROPERTY AND DEFEASANCE SECURITYPROPERTY. COMPANY BUYER ALSO ACKNOWLEDGES THAT THE REAL PROPERTY MAY OR MAY NOT CONTAIN ASBESTOS AND, IF THE REAL PROPERTY CONTAINS ASBESTOS, THAT THE OWNER BUYER MAY OR MAY NOT BE REQUIRED TO REMEDIATE ANY ASBESTOS CONDITION IN ACCORDANCE WITH APPLICABLE LAW. COMPANY BUYER IS A SOPHISTICATED REAL ESTATE INVESTOR AND IS, OR WILL BE AS OF THE EXPIRATION CLOSE OF THE FINANCING CONTINGENCY PERIODESCROW, FAMILIAR WITH THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS, THE DEFEASANCE SECURITY AND THE REAL PROPERTY AND ITS SUITABILITY FOR COMPANY’S BUYER'S INTENDED USE. THE PROVISIONS OF THIS SECTION 11.2 SHALL SURVIVE INDEFINITELY ANY CLOSING OR TERMINATION OF THIS AGREEMENT AND SHALL NOT BE MERGED INTO THE DOCUMENTS EXECUTED AT CLOSINGCLOSE OF ESCROW. ADDITIONALLY, COMPANY COVENANTS THAT, FOLLOWING THE CLOSING, OTHER THAN WITH RESPECT TO CLAIMS TO THE EXTENT ARISING FROM SELLER’S BREACH OF SELLER’S WARRANTIES TO THE EXTENT THE SAME SURVIVE THE CLOSING OR ANY OTHER INDEMNITIES OR OTHER PROVISIONS OF THIS AGREEMENT THAT SHALL SPECIFICALLY SURVIVE THE CLOSING, COMPANY SHALL NOT, AND SHALL NOT PERMIT ITS AFFILIATES, TO COMMENCE ANY CLAIM, LITIGATION OR OTHER ACTION AGAINST SELLER, OR ITS AFFILIATES, FOR ANY CLAIMS ASSOCIATED WITH THE INTERESTS, THE OWNERS OR THE PROPERTY AND DEFEASANCE SECURITY, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS RELATING TO THE VALUATION, MARKETABILITY, UTILITY, OR PHYSICAL OR ENVIRONMENTAL CONDITION THEREOF. /s/ Authorized Signatory COMPANY----------------------- BUYER'S INITIALS
Appears in 1 contract
Sources: Purchase and Sale Agreement (Behringer Harvard Mid Term Value Enhancement Fund I Lp)
AS-IS. If this Agreement is not terminated pursuant In addition to the terms of Section 4.3.2 hereofcovenants contained elsewhere in this Agreement, except for the Seller's Warranties (it is hereby covenanted and agreed as hereinafter defined), the Company will be deemed to have had the opportunity to havefollows:
(a) examined and Buyer represents that, as of the date hereof, it has inspected the Property Property, the uses thereof and Defeasance Security the fixtures, equipment and Company shall be deemed personal property, if any, included in this sale to know its satisfaction, that it has independently investigated, analyzed and be satisfied with appraised the physical conditionvalue and profitability thereof, qualitythat it has reviewed and/or, quantity if requested, received copies of and has reviewed the leases, service contracts, and all other documents and/or state of repair of facts affecting the Property and Defeasance Security in all respects (which Buyer deems relevant, including, without limitation, any documents referred to herein with respect to the Property, that it is thoroughly acquainted with all of the foregoing and that it agrees to take title to the Property in "as is" condition on the date hereof, reasonable wear and tear between the date hereof and the Closing Date excepted. Buyer expressly acknowledges that, except as expressly provided herein, Seller has not made any representations or warranties and has held out no inducements to Buyer to execute this Agreement. Without limiting the generality of the foregoing, except as expressly provided herein, Buyer has not relied on any representations or warranties, and Seller has not made any representations or warranties, in either case express or implied as to any thing or matter relating to the Property or otherwise, including, without limitation, with respect to (a) the current or future real estate tax liability, assessment or valuation of the Property; (b) the potential qualification of the Property for any and all benefits conferred by federal, state or municipal laws, whether for subsidies, special real estate tax treatment, insurance, financing, or any other benefits, whether similar or dissimilar to those enumerated; (c) the compliance of the Real Property, in its current or any future state with applicable zoning ordinances and the ability to obtain a variance in respect to the Property and possible non-compliance with said zoning ordinances; (d) the Americans With Disabilities Act availability of 1990 Pub.L. 101-336any financing for the purchase, 104 Stat. 327 alteration, rehabilitation or operation of the Property from any source, including but not limited to state, city or federal governments or any institutional lenders; (1990), e) the current or future use of the Property (f) the present and future condition and operating state of any comparable local and all machinery or equipment on the Property and the present or future structural and physical condition of the buildings or their suitability for rehabilitation or renovation; (g) the ownership or state of title of any personal property on the Property; (h) the presence or absence of any rules or notices of violations of law issued by any governmental authority, including, without limitation, building codes, fire codes and environmental laws; (i) the presence or absence of any pending or threatened action instituted by a tenant or occupant; (j) the status of any tenancies or occupancies at the Property and/or the prospect of continued occupancy by such tenants or occupants; and (k) the presence or absence of any lead based paint, asbestos or any other substance deemed hazardous under any federal, state or municipal laws (collectivelyon, under or about the “ADA”);Property.
(b) reviewed the Entity Documents and all instrumentsIN ADDITION, records and documents which Company deems appropriate or advisable to review in connection with this transaction, including, but not by way of limitation, any and all documentation relating to the Interests, any and all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees relating to the Real Property or the business conducted thereon, and Company shall be deemed to have determined that the same and the information and data contained therein and evidenced thereby are satisfactory to Company; and
(c) at its own cost and expense, made its own independent investigation respecting the Property, the Defeasance Security, the Interests and all other aspects of this transaction, and shall have relied thereon and on the advice of its consultants in entering into this Agreement, and Company shall be deemed to have determined that the same are satisfactory to Company. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR SELLER’S REPRESENTATIONS AND WARRANTIES IN SECTION 11.1 BUYER ACKNOWLEDGES RECEIPT OF THIS AGREEMENT AND IN ANY INSTRUMENTS DELIVERED BY SELLER IN CONNECTION WITH THE CLOSING AND SELLER’S COVENANTS HEREIN AND THEREIN (“SELLER’S WARRANTIES”), THIS SALE IS MADE AND WILL BE MADE WITHOUT REPRESENTATION, COVENANT, OR WARRANTY COPIES OF ANY KIND (WHETHER EXPRESS, IMPLIED, OR, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STATUTORY) BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, COMPANY AGREES TO ACCEPT THE INTERESTS AND THE OWNER’S INTEREST IN THE PROPERTY AND DEFEASANCE SECURITY ON AN “AS IS” AND “WHERE IS” BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION OR WARRANTY, ALL OF WHICH SELLER HEREBY DISCLAIMS, EXCEPT FOR SELLER’S WARRANTIES. EXCEPT FOR SELLER’S WARRANTIES, NO WARRANTY OR REPRESENTATION IS MADE BY SELLER AS TO FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, QUALITY, CONDITION, OPERATION OR INCOME, COMPLIANCE WITH DRAWINGS OR SPECIFICATIONS, ABSENCE OF DEFECTS, ABSENCE OF HAZARDOUS OR TOXIC SUBSTANCES, ABSENCE OF FAULTS, FLOODING, OR COMPLIANCE WITH LAWS AND REGULATIONS INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO HEALTH, SAFETY, AND THE ENVIRONMENT (INCLUDING, WITHOUT LIMITATION, THE ADA). COMPANY ACKNOWLEDGES THAT COMPANY HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS OWN INVESTIGATION OF THE INTERESTS, THE OWNERS AND THE ENTITY DOCUMENTS AND THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND DEFEASANCE SECURITY AND THAT COMPANY IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER’S BEHALF CONCERNING THE PROPERTY, THE DEFEASANCE SECURITY, THE INTERESTS, THE OWNERS OR THE ENTITY DOCUMENTS, EXCEPT AS EXPRESSLY PROVIDED IN THE SELLER’S WARRANTIES. ADDITIONALLY, COMPANY AND SELLER HEREBY AGREE THAT CERTAIN ENVIRONMENTAL SURVEY REPORTS DATED RESPECTIVELY (A) EXCEPT FOR SELLER’S WARRANTIESMARCH, COMPANY IS TAKING THE INTERESTS AND ITS INDIRECT INTERESTS IN THE PROPERTY AND DEFEASANCE SECURITY “AS IS” WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER’S WARRANTIES1993, THERE IS NO WARRANTY CALLED PHASE I ENVIRONMENTAL SITE ASSESSMENT BY SELLER THAT THE PROPERTYSHB - AGRA, THE DEFEASANCE SECURITY OR THE INTERESTS ARE FIT FOR A PARTICULAR PURPOSEINC., (B) EXCEPT FOR SELLER’S WARRANTIESOCTOBER 6, COMPANY IS SOLELY RELYING UPON ITS OPPORTUNITY TO HAVE CONDUCTED AN EXAMINATION OF THE PROPERTY, THE DEFEASANCE SECURITY, THE INTERESTS, THE OWNERS 1993 PREPARED BY ▇▇▇ ▇. ▇▇▇▇▇▇▇ AND THE OPERATING AGREEMENTSASSOCIATES, AND (C) COMPANY TAKES THE PROPERTYOCTOBER, THE DEFEASANCE SECURITY AND THE INTERESTS UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR SELLER’S WARRANTIES)1996 PREPARED BY ▇▇▇ ▇. WITH RESPECT TO THE FOLLOWING, COMPANY FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR SELLER’S WARRANTIES, SELLER SHALL NOT HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY OF ANY KIND AND THAT SELLER HAS NOT MADE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND:
1. THE CONTENT OR ACCURACY OF ANY REPORT, STUDY, OPINION OR CONCLUSION OF ANY SOILS, TOXIC, ENVIRONMENTAL OR OTHER ENGINEER OR OTHER PERSON OR ENTITY WHO HAS EXAMINED THE PROPERTY OR ANY ASPECT THEREOF;
2. THE CONTENT OR ACCURACY OF ANY OF THE ITEMS (INCLUDING, WITHOUT LIMITATION, THE ENTITY DOCUMENTS) DELIVERED TO COMPANY PURSUANT TO COMPANY’S REVIEW OF THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS AND THE CONDITION OF THE PROPERTY AND DEFEASANCE SECURITY; OR
3. THE CONTENT OR ACCURACY OF ANY PROJECTION, FINANCIAL OR MARKETING ANALYSIS OR OTHER INFORMATION GIVEN TO COMPANY BY SELLER OR REVIEWED BY COMPANY WITH RESPECT TO THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS OR THE PROPERTY AND DEFEASANCE SECURITY. COMPANY ALSO ACKNOWLEDGES THAT THE REAL PROPERTY MAY OR MAY NOT CONTAIN ASBESTOS AND, IF THE REAL PROPERTY CONTAINS ASBESTOS, THAT THE OWNER MAY OR MAY NOT BE REQUIRED TO REMEDIATE ANY ASBESTOS CONDITION IN ACCORDANCE WITH APPLICABLE LAW. COMPANY IS A SOPHISTICATED REAL ESTATE INVESTOR AND IS, OR WILL BE AS OF THE EXPIRATION OF THE FINANCING CONTINGENCY PERIOD, FAMILIAR WITH THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS, THE DEFEASANCE SECURITY AND THE REAL PROPERTY AND ITS SUITABILITY FOR COMPANY’S INTENDED USE. THE PROVISIONS OF THIS SECTION 11.2 SHALL SURVIVE INDEFINITELY ANY CLOSING OR TERMINATION OF THIS AGREEMENT AND SHALL NOT BE MERGED INTO THE DOCUMENTS EXECUTED AT CLOSING. ADDITIONALLY, COMPANY COVENANTS THAT, FOLLOWING THE CLOSING, OTHER THAN WITH RESPECT TO CLAIMS TO THE EXTENT ARISING FROM SELLER’S BREACH OF SELLER’S WARRANTIES TO THE EXTENT THE SAME SURVIVE THE CLOSING OR ANY OTHER INDEMNITIES OR OTHER PROVISIONS OF THIS AGREEMENT THAT SHALL SPECIFICALLY SURVIVE THE CLOSING, COMPANY SHALL NOT, AND SHALL NOT PERMIT ITS AFFILIATES, TO COMMENCE ANY CLAIM, LITIGATION OR OTHER ACTION AGAINST SELLER, OR ITS AFFILIATES, FOR ANY CLAIMS ASSOCIATED WITH THE INTERESTS, THE OWNERS OR THE PROPERTY AND DEFEASANCE SECURITY, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS RELATING TO THE VALUATION, MARKETABILITY, UTILITY, OR PHYSICAL OR ENVIRONMENTAL CONDITION THEREOF. /s/ Authorized Signatory COMPANY'S INITIALS▇▇▇▇▇▇▇ & ASSOCIATES.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Booth Creek Ski Holdings Inc)
AS-IS. If this Agreement is not terminated pursuant to As of the terms expiration of Section 4.3.2 hereofthe Due Diligence Period, except for the Seller's Warranties (as hereinafter defined), the Company Buyer will be deemed to have had the opportunity to have:
(aA) examined and inspected the Property and Defeasance Security and Company shall be deemed to will know and be satisfied with the physical condition, quality, quantity and state of repair of the Property and Defeasance Security in all respects (including, without limitation, the compliance of the Real Property with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any comparable local or state laws (collectively, the “ADA”)) and by proceeding with this transaction following the expiration of the Due Diligence Period shall be deemed to have determined that the same is satisfactory to Buyer;
(bB) reviewed the Entity Documents Property Information and all instruments, records and documents which Company Buyer deems appropriate or advisable to review in connection with this transaction, including, but not by way of limitation, any and all documentation relating to the Interests, any and all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees relating to the Real Property or the business conducted thereon, and Company Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same and the information and data contained therein and evidenced thereby are satisfactory to CompanyBuyer;
(C) reviewed all applicable laws, ordinances, rules and governmental regulations (including, but not limited to, those relating to building, zoning and land use) affecting the development, use, occupancy or enjoyment of the Real Property, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer; and
(cD) at its own cost and expense, made its own independent investigation respecting the Property, the Defeasance Security, the Interests Property and all other aspects of this transaction, and shall have relied thereon and on the advice of its consultants in entering into this Agreement, and Company Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to CompanyBuyer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR SELLER’S REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, IN SECTION 11.1 OF THIS AGREEMENT AND ANY WARRANTIES OF TITLE CONTAINED IN THE DEED DELIVERED AT THE CLOSE OF ESCROW OR IN ANY INSTRUMENTS OTHER DOCUMENTS DELIVERED BY SELLER IN CONNECTION WITH AT THE CLOSING AND SELLER’S COVENANTS HEREIN AND THEREIN CLOSE OF ESCROW (“SELLER’S WARRANTIES”), THIS SALE IS MADE AND WILL BE MADE WITHOUT REPRESENTATION, COVENANT, OR WARRANTY OF ANY KIND (WHETHER EXPRESS, IMPLIED, OR, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STATUTORY) BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, COMPANY BUYER AGREES TO ACCEPT THE INTERESTS AND THE OWNER’S INTEREST IN THE PROPERTY AND DEFEASANCE SECURITY ON AN “AS IS” AND “WHERE IS” BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION OR WARRANTY, ALL OF WHICH SELLER HEREBY DISCLAIMS, EXCEPT FOR SELLER’S WARRANTIES. EXCEPT FOR SELLER’S WARRANTIES, NO WARRANTY OR REPRESENTATION IS MADE BY SELLER AS TO FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, QUALITY, CONDITION, OPERATION OR INCOME, COMPLIANCE WITH DRAWINGS OR SPECIFICATIONS, ABSENCE OF DEFECTS, ABSENCE OF HAZARDOUS OR TOXIC SUBSTANCES, ABSENCE OF FAULTS, FLOODING, OR COMPLIANCE WITH LAWS AND REGULATIONS INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO HEALTH, SAFETY, AND THE ENVIRONMENT (INCLUDING, WITHOUT LIMITATION, THE ADA). COMPANY BUYER ACKNOWLEDGES THAT COMPANY BUYER HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON THE SELLER’S WARRANTIES AND ITS OWN INVESTIGATION OF THE INTERESTS, THE OWNERS AND THE ENTITY DOCUMENTS AND THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND DEFEASANCE SECURITY AND THAT COMPANY BUYER IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES (EXCEPT FOR SELLER’S WARRANTIES) MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER’S BEHALF CONCERNING THE PROPERTY, THE DEFEASANCE SECURITY, THE INTERESTS, THE OWNERS OR THE ENTITY DOCUMENTS, EXCEPT AS EXPRESSLY PROVIDED IN THE SELLER’S WARRANTIES. ADDITIONALLY, COMPANY BUYER AND SELLER HEREBY AGREE THAT (A) EXCEPT FOR SELLER’S WARRANTIES, COMPANY BUYER IS TAKING THE INTERESTS AND ITS INDIRECT INTERESTS IN THE PROPERTY AND DEFEASANCE SECURITY “AS IS” WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER’S WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY, THE DEFEASANCE SECURITY OR THE INTERESTS ARE PROPERTY IS FIT FOR A PARTICULAR PURPOSE, (B) EXCEPT FOR SELLER’S WARRANTIES, COMPANY BUYER IS SOLELY RELYING UPON ITS OPPORTUNITY TO HAVE CONDUCTED AN EXAMINATION OF THE PROPERTY, THE DEFEASANCE SECURITY, THE INTERESTS, THE OWNERS AND THE OPERATING AGREEMENTS, AND (C) COMPANY BUYER TAKES THE PROPERTY, THE DEFEASANCE SECURITY AND THE INTERESTS PROPERTY UNDER THIS AGREEMENT UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR THE LIMITED WARRANTIES OF TITLE SET FORTH IN THE DEED AND SELLER’S WARRANTIESWARRANTIES OR IN ANY OTHER DOCUMENTS DELIVERED BY SELLER AT THE CLOSE OF ESCROW). WITH RESPECT TO THE FOLLOWING, COMPANY BUYER FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR SELLER’S WARRANTIES, THAT SELLER SHALL NOT HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY OF ANY KIND AND THAT SELLER HAS NOT MADE ANY NO REPRESENTATIONS OR WARRANTIES OF ANY KIND:
1. THE CONTENT OR ACCURACY OF ANY REPORT, STUDY, OPINION OR CONCLUSION OF ANY SOILS, TOXIC, ENVIRONMENTAL OR OTHER ENGINEER OR OTHER PERSON OR ENTITY WHO HAS EXAMINED THE PROPERTY OR ANY ASPECT THEREOF;
2. THE CONTENT OR ACCURACY OF ANY OF THE ITEMS (INCLUDING, WITHOUT LIMITATION, THE ENTITY DOCUMENTS) PROPERTY INFORMATION DELIVERED TO COMPANY BUYER PURSUANT TO COMPANYBUYER’S REVIEW OF THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS AND THE CONDITION OF THE PROPERTY AND DEFEASANCE SECURITYPROPERTY; OR
3. THE CONTENT OR ACCURACY OF ANY PROJECTION, FINANCIAL OR MARKETING ANALYSIS OR OTHER INFORMATION GIVEN TO COMPANY BUYER BY SELLER OR REVIEWED BY COMPANY BUYER WITH RESPECT TO THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS OR THE PROPERTY AND DEFEASANCE SECURITYPROPERTY. COMPANY BUYER ALSO ACKNOWLEDGES THAT THE REAL PROPERTY MAY OR MAY NOT CONTAIN ASBESTOS AND, IF THE REAL PROPERTY CONTAINS ASBESTOS, THAT THE OWNER BUYER MAY OR MAY NOT BE REQUIRED TO REMEDIATE ANY ASBESTOS CONDITION IN ACCORDANCE WITH APPLICABLE LAW. COMPANY BUYER IS A SOPHISTICATED REAL ESTATE INVESTOR AND IS, OR WILL BE AS OF THE EXPIRATION CLOSE OF THE FINANCING CONTINGENCY PERIODESCROW, FAMILIAR WITH THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS, THE DEFEASANCE SECURITY AND THE REAL PROPERTY AND ITS SUITABILITY FOR COMPANYBUYER’S INTENDED USE. THE PROVISIONS OF THIS SECTION 11.2 SHALL SURVIVE INDEFINITELY ANY CLOSING OR TERMINATION OF THIS AGREEMENT AND SHALL NOT BE MERGED INTO THE DOCUMENTS EXECUTED AT CLOSINGCLOSE OF ESCROW. ADDITIONALLY, COMPANY COVENANTS THAT, FOLLOWING THE CLOSING, OTHER THAN WITH RESPECT TO CLAIMS TO THE EXTENT ARISING FROM SELLERBUYER’S BREACH OF SELLER’S WARRANTIES TO THE EXTENT THE SAME SURVIVE THE CLOSING OR ANY OTHER INDEMNITIES OR OTHER PROVISIONS OF THIS AGREEMENT THAT SHALL SPECIFICALLY SURVIVE THE CLOSING, COMPANY SHALL NOT, AND SHALL NOT PERMIT ITS AFFILIATES, TO COMMENCE ANY CLAIM, LITIGATION OR OTHER ACTION AGAINST SELLER, OR ITS AFFILIATES, FOR ANY CLAIMS ASSOCIATED WITH THE INTERESTS, THE OWNERS OR THE PROPERTY AND DEFEASANCE SECURITY, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS RELATING TO THE VALUATION, MARKETABILITY, UTILITY, OR PHYSICAL OR ENVIRONMENTAL CONDITION THEREOF. /s/ Authorized Signatory COMPANY'S INITIALS
Appears in 1 contract
Sources: Purchase and Sale Agreement (Armada Hoffler Properties, Inc.)
AS-IS. If this Agreement is not terminated pursuant to As of the terms expiration of Section 4.3.2 hereofthe Due Diligence Period, except for the Seller's Warranties (as hereinafter defined), the Company Buyer will be deemed to have had the opportunity to have:
(a) examined and inspected the Property Purchased Assets, including the Real Property, and Defeasance Security and Company shall be deemed to will know and be satisfied with the physical condition, quality, quantity and state of repair of the Property and Defeasance Security Purchased Assets in all respects (including, without limitation, the compliance of the Real Property with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any comparable local or state laws (collectively, the “"ADA”");
(b) ); reviewed the Entity Documents Property Information and all instruments, records and documents which Company Buyer deems appropriate or advisable to review in connection with this transaction; reviewed all applicable laws, ordinances, rules and governmental regulations (including, but not by way of limitationlimited to, any and all documentation those relating to building, zoning and land use) affecting the Interestsdevelopment, any and all architectural drawingsuse, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees relating to or enjoyment of the Real Property or the business conducted thereon, and Company shall be deemed to have determined that the same and the information and data contained therein and evidenced thereby are satisfactory to CompanyProperty; and
(c) at its own cost and expense, made its own independent investigation respecting the Property, the Defeasance Security, the Interests Purchased Assets and all other aspects of this transaction, and shall have relied thereon and on the advice of its consultants in entering into this Agreement; and Buyer, and Company by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to CompanyBuyer. BUYER HEREBY ACKNOWLEDGES AND AGREES THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR SELLER’S REPRESENTATIONS AND WARRANTIES IN SECTION 11.1 OF THIS AGREEMENT AND IN ANY INSTRUMENTS DELIVERED BY SELLER IN CONNECTION WITH THE CLOSING AND SELLER’S COVENANTS HEREIN AND THEREIN (“SELLER’S WARRANTIES”), THIS SALE IS MADE AND WILL BE MADE WITHOUT REPRESENTATION, COVENANT, OR WARRANTY OF ANY KIND (WHETHER EXPRESS, IMPLIED, OR, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STATUTORY) BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, COMPANY BUYER AGREES TO ACCEPT THE INTERESTS AND THE OWNER’S INTEREST IN THE PROPERTY AND DEFEASANCE SECURITY PURCHASED ASSETS ON AN “"AS IS” " AND “"WHERE IS” " BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION OR WARRANTY, ALL OF WHICH SELLER HEREBY DISCLAIMS, EXCEPT FOR SELLER’S WARRANTIES. EXCEPT FOR SELLER’S WARRANTIES, NO WARRANTY OR REPRESENTATION IS MADE BY SELLER AS TO FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, QUALITY, CONDITION, OPERATION OR INCOME, COMPLIANCE WITH DRAWINGS OR SPECIFICATIONS, ABSENCE OF DEFECTS, ABSENCE OF HAZARDOUS OR TOXIC SUBSTANCES, ABSENCE OF FAULTS, FLOODING, OR COMPLIANCE WITH LAWS AND REGULATIONS INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO HEALTH, SAFETY, AND THE ENVIRONMENT (INCLUDING, WITHOUT LIMITATION, THE ADA). COMPANY BUYER ACKNOWLEDGES THAT COMPANY BUYER HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS OWN INVESTIGATION OF THE INTERESTS, THE OWNERS AND THE ENTITY DOCUMENTS AND THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND DEFEASANCE SECURITY PURCHASED ASSETS AND THAT COMPANY BUYER IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER’S 'S BEHALF CONCERNING THE PROPERTY, THE DEFEASANCE SECURITY, THE INTERESTS, THE OWNERS OR THE ENTITY DOCUMENTS, EXCEPT AS EXPRESSLY PROVIDED IN THE SELLER’S WARRANTIESPURCHASED ASSETS. ADDITIONALLY, COMPANY BUYER AND SELLER HEREBY AGREE THAT (A) EXCEPT FOR SELLER’S WARRANTIES, COMPANY BUYER IS TAKING THE INTERESTS AND ITS INDIRECT INTERESTS IN THE REAL PROPERTY AND DEFEASANCE SECURITY “"AS IS” " WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER’S WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY, THE DEFEASANCE SECURITY OR THE INTERESTS ARE REAL PROPERTY IS FIT FOR A PARTICULAR PURPOSE, (B) EXCEPT FOR SELLER’S WARRANTIES, COMPANY BUYER IS SOLELY RELYING UPON ITS OPPORTUNITY TO HAVE CONDUCTED AN EXAMINATION OF THE PROPERTY, THE DEFEASANCE SECURITY, THE INTERESTS, THE OWNERS AND THE OPERATING AGREEMENTS, AND (C) COMPANY BUYER TAKES THE PROPERTY, THE DEFEASANCE SECURITY AND THE INTERESTS REAL PROPERTY UNDER THIS AGREEMENT UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR SELLER’S WARRANTIES). WITH RESPECT TO THE FOLLOWING, COMPANY FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR SELLER’S WARRANTIES, SELLER SHALL NOT HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY OF ANY KIND AND THAT SELLER HAS NOT MADE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND:
1. THE CONTENT OR ACCURACY OF ANY REPORT, STUDY, OPINION OR CONCLUSION OF ANY SOILS, TOXIC, ENVIRONMENTAL OR OTHER ENGINEER OR OTHER PERSON OR ENTITY WHO HAS EXAMINED THE PROPERTY OR ANY ASPECT THEREOF;
2. THE CONTENT OR ACCURACY OF ANY OF THE ITEMS (INCLUDING, WITHOUT LIMITATION, THE ENTITY DOCUMENTS) DELIVERED TO COMPANY PURSUANT TO COMPANY’S REVIEW OF THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS AND THE CONDITION OF THE PROPERTY AND DEFEASANCE SECURITY; OR
3. THE CONTENT OR ACCURACY OF ANY PROJECTION, FINANCIAL OR MARKETING ANALYSIS OR OTHER INFORMATION GIVEN TO COMPANY BY SELLER OR REVIEWED BY COMPANY WITH RESPECT TO THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS OR THE PROPERTY AND DEFEASANCE SECURITY. COMPANY ALSO ACKNOWLEDGES THAT THE REAL PROPERTY MAY OR MAY NOT CONTAIN ASBESTOS AND, IF THE REAL PROPERTY CONTAINS ASBESTOS, THAT THE OWNER MAY OR MAY NOT BE REQUIRED TO REMEDIATE ANY ASBESTOS CONDITION IN ACCORDANCE WITH APPLICABLE LAW. COMPANY IS A SOPHISTICATED REAL ESTATE INVESTOR AND BUYER IS, OR WILL BE AS OF THE EXPIRATION CLOSE OF THE FINANCING CONTINGENCY PERIODESCROW, FAMILIAR WITH THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS, THE DEFEASANCE SECURITY AND THE REAL PROPERTY AND ITS SUITABILITY FOR COMPANY’S BUYER'S INTENDED USE. THE PROVISIONS OF THIS SECTION 11.2 SHALL SURVIVE INDEFINITELY ANY CLOSING OR TERMINATION OF THIS AGREEMENT AND SHALL NOT BE MERGED INTO THE DOCUMENTS EXECUTED AT CLOSING. ADDITIONALLY, COMPANY COVENANTS THAT, FOLLOWING THE CLOSING, OTHER THAN WITH RESPECT TO CLAIMS TO THE EXTENT ARISING FROM SELLER’S BREACH OF SELLER’S WARRANTIES TO THE EXTENT THE SAME SURVIVE THE CLOSING OR ANY OTHER INDEMNITIES OR OTHER PROVISIONS OF THIS AGREEMENT THAT SHALL SPECIFICALLY SURVIVE THE CLOSING, COMPANY SHALL NOT, AND SHALL NOT PERMIT ITS AFFILIATES, TO COMMENCE ANY CLAIM, LITIGATION OR OTHER ACTION AGAINST SELLER, OR ITS AFFILIATES, FOR ANY CLAIMS ASSOCIATED WITH THE INTERESTS, THE OWNERS OR THE PROPERTY AND DEFEASANCE SECURITY, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS RELATING TO THE VALUATION, MARKETABILITY, UTILITY, OR PHYSICAL OR ENVIRONMENTAL CONDITION THEREOF. /s/ Authorized Signatory COMPANY'S INITIALS.
Appears in 1 contract
AS-IS. If this Agreement is not terminated pursuant to As of the terms expiration of Section 4.3.2 hereofthe Due Diligence Period, except for the Seller's Warranties (as hereinafter defined), the Company Buyer will be deemed to have had the opportunity to have:
(a) examined and inspected the Property and Defeasance Security and Company shall be deemed to will know and be satisfied with the physical condition, quality, quantity and state of repair of the Property and Defeasance Security in all respects (including, without limitation, the compliance of the Real Property with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any comparable local or state laws (collectively, the “"ADA”)") and by proceeding with this transaction following the expiration of the Due Diligence Period shall be deemed to have determined that the same is satisfactory to Buyer;
(b) reviewed the Entity Documents Property Information and all instruments, records and documents which Company Buyer deems appropriate or advisable to review in connection with this transaction, including, but not by way of limitation, any and all documentation relating to the Interests, any and all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees relating to the Real Property or the business conducted thereon, and Company Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same and the information and data contained therein and evidenced thereby are satisfactory to CompanyBuyer;
(c) reviewed all applicable laws, ordinances, rules and governmental regulations (including, but not limited to, those relating to building, zoning and land use) affecting the development, use, occupancy or enjoyment of the Real Property, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer; and
(cd) at its own cost and expense, made its own independent investigation respecting the Property, the Defeasance Security, the Interests Property and all other aspects of this transaction, and shall have relied thereon and on the advice of its consultants in entering into this Agreement, and Company Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to CompanyBuyer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR SELLER’S 'S REPRESENTATIONS AND WARRANTIES IN SECTION 11.1 OF THIS AGREEMENT AND ANY WARRANTIES OF TITLE CONTAINED IN ANY INSTRUMENTS THE DEED DELIVERED BY SELLER IN CONNECTION WITH AT THE CLOSING AND CLOSE OF ESCROW ("SELLER’S COVENANTS HEREIN AND THEREIN (“SELLER’S 'S WARRANTIES”"), THIS SALE IS MADE AND WILL BE MADE WITHOUT REPRESENTATION, COVENANT, OR WARRANTY OF ANY KIND (WHETHER EXPRESS, IMPLIED, OR, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STATUTORY) BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, COMPANY BUYER AGREES TO ACCEPT THE INTERESTS AND THE OWNER’S INTEREST IN THE PROPERTY AND DEFEASANCE SECURITY ON AN “"AS IS” " AND “"WHERE IS” " BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION OR WARRANTY, ALL OF WHICH SELLER HEREBY DISCLAIMS, EXCEPT FOR SELLER’S 'S WARRANTIES. EXCEPT FOR SELLER’S 'S WARRANTIES, NO WARRANTY OR REPRESENTATION IS MADE BY SELLER AS TO FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, QUALITY, CONDITION, OPERATION OR INCOME, COMPLIANCE WITH DRAWINGS OR SPECIFICATIONS, ABSENCE OF DEFECTS, ABSENCE OF HAZARDOUS OR TOXIC SUBSTANCES, ABSENCE OF FAULTS, FLOODING, OR COMPLIANCE WITH LAWS AND REGULATIONS INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO HEALTH, SAFETY, AND THE ENVIRONMENT (INCLUDING, WITHOUT LIMITATION, THE ADA). COMPANY BUYER ACKNOWLEDGES THAT COMPANY BUYER HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS OWN INVESTIGATION OF THE INTERESTS, THE OWNERS AND THE ENTITY DOCUMENTS AND THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND DEFEASANCE SECURITY AND THAT COMPANY BUYER IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER’S 'S BEHALF CONCERNING THE PROPERTY, THE DEFEASANCE SECURITY, THE INTERESTS, THE OWNERS OR THE ENTITY DOCUMENTS, EXCEPT AS EXPRESSLY PROVIDED IN THE SELLER’S WARRANTIES. ADDITIONALLY, COMPANY BUYER AND SELLER HEREBY AGREE THAT (A) EXCEPT FOR SELLER’S 'S WARRANTIES, COMPANY BUYER IS TAKING THE INTERESTS AND ITS INDIRECT INTERESTS IN THE PROPERTY AND DEFEASANCE SECURITY “"AS IS” " WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER’S 'S WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY, THE DEFEASANCE SECURITY OR THE INTERESTS ARE PROPERTY IS FIT FOR A PARTICULAR PURPOSE, (B) EXCEPT FOR SELLER’S 'S WARRANTIES, COMPANY BUYER IS SOLELY RELYING UPON ITS OPPORTUNITY TO HAVE CONDUCTED AN EXAMINATION OF THE PROPERTY, THE DEFEASANCE SECURITY, THE INTERESTS, THE OWNERS AND THE OPERATING AGREEMENTS, AND (C) COMPANY BUYER TAKES THE PROPERTY, THE DEFEASANCE SECURITY AND THE INTERESTS PROPERTY UNDER THIS CONTRACT UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR THE LIMITED WARRANTIES OF TITLE SET FORTH IN THE DEED AND SELLER’S 'S WARRANTIES). WITH RESPECT TO THE FOLLOWING, COMPANY BUYER FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR SELLER’S WARRANTIES, THAT SELLER SHALL NOT HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY OF ANY KIND AND THAT SELLER HAS NOT MADE ANY NO REPRESENTATIONS OR WARRANTIES OF ANY KIND:
1. THE CONTENT OR ACCURACY OF ANY REPORT, STUDY, OPINION OR CONCLUSION OF ANY SOILS, TOXIC, ENVIRONMENTAL OR OTHER ENGINEER OR OTHER PERSON OR ENTITY WHO HAS EXAMINED THE PROPERTY OR ANY ASPECT THEREOF;
2. THE CONTENT OR ACCURACY OF ANY OF THE ITEMS (INCLUDING, WITHOUT LIMITATION, THE ENTITY DOCUMENTSPROPERTY INFORMATION) DELIVERED TO COMPANY BUYER PURSUANT TO COMPANY’S BUYER'S REVIEW OF THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS AND THE CONDITION OF THE PROPERTY AND DEFEASANCE SECURITYPROPERTY; OR
3. THE CONTENT OR ACCURACY OF ANY PROJECTION, FINANCIAL OR MARKETING ANALYSIS OR OTHER INFORMATION GIVEN TO COMPANY BUYER BY SELLER OR REVIEWED BY COMPANY BUYER WITH RESPECT TO THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS OR THE PROPERTY AND DEFEASANCE SECURITYPROPERTY. COMPANY BUYER ALSO ACKNOWLEDGES THAT THE REAL PROPERTY MAY OR MAY NOT CONTAIN ASBESTOS AND, IF THE REAL PROPERTY CONTAINS ASBESTOS, THAT THE OWNER BUYER MAY OR MAY NOT BE REQUIRED TO REMEDIATE ANY ASBESTOS CONDITION IN ACCORDANCE WITH APPLICABLE LAW. COMPANY BUYER IS A SOPHISTICATED REAL ESTATE INVESTOR AND IS, OR WILL BE AS OF THE EXPIRATION CLOSE OF THE FINANCING CONTINGENCY PERIODESCROW, FAMILIAR WITH THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS, THE DEFEASANCE SECURITY AND THE REAL PROPERTY AND ITS SUITABILITY FOR COMPANY’S BUYER'S INTENDED USE. THE PROVISIONS OF THIS SECTION 11.2 SHALL SURVIVE INDEFINITELY ANY CLOSING OR TERMINATION OF THIS AGREEMENT AND SHALL NOT BE MERGED INTO THE DOCUMENTS EXECUTED AT CLOSINGCLOSE OF ESCROW. ADDITIONALLY, COMPANY COVENANTS THAT, FOLLOWING THE CLOSING, OTHER THAN WITH RESPECT TO CLAIMS TO THE EXTENT ARISING FROM SELLER’S BREACH OF SELLER’S WARRANTIES TO THE EXTENT THE SAME SURVIVE THE CLOSING OR ANY OTHER INDEMNITIES OR OTHER PROVISIONS OF THIS AGREEMENT THAT SHALL SPECIFICALLY SURVIVE THE CLOSING, COMPANY SHALL NOT, AND SHALL NOT PERMIT ITS AFFILIATES, TO COMMENCE ANY CLAIM, LITIGATION OR OTHER ACTION AGAINST SELLER, OR ITS AFFILIATES, FOR ANY CLAIMS ASSOCIATED WITH THE INTERESTS, THE OWNERS OR THE PROPERTY AND DEFEASANCE SECURITY, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS RELATING TO THE VALUATION, MARKETABILITY, UTILITY, OR PHYSICAL OR ENVIRONMENTAL CONDITION THEREOF. /s/ Authorized Signatory COMPANYBUYER'S INITIALS: _____________
Appears in 1 contract
Sources: Purchase and Sale Agreement (Behringer Harvard Mid Term Value Enhancement Fund I Lp)
AS-IS. If this Agreement is not terminated pursuant to As of the terms expiration of Section 4.3.2 hereofthe Due Diligence Period, except for the Seller's Warranties (as hereinafter defined), the Company Buyer will be deemed to have had the opportunity to have:
(a) examined and inspected the Property and Defeasance Security and Company shall be deemed to will know and be satisfied with the physical condition, quality, quantity and state of repair of the Property and Defeasance Security in all respects (including, without limitation, the compliance of the Real Property with the Americans With Disabilities Act of 1990 Pub.L. 101-336, 104 Stat. 327 (1990), and any comparable local or state laws (collectively, the “ADA”)) and by proceeding with this transaction following the expiration of the Due Diligence Period shall be deemed to have determined that the same is satisfactory to Buyer;
(b) reviewed the Entity Documents Property Information and all instruments, records and documents which Company Buyer deems appropriate or advisable to review in connection with this transaction, including, but not by way of limitation, any and all documentation relating to the Interests, any and all architectural drawings, plans, specifications, surveys, building and occupancy permits, and any licenses, leases, contracts, warranties and guarantees relating to the Real Property or the business conducted thereon, and Company Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same and the information and data contained therein and evidenced thereby are satisfactory to CompanyBuyer;
(c) reviewed all applicable laws, ordinances, rules and governmental regulations (including, but not limited to, those relating to building, zoning and land use) affecting the development, use, occupancy or enjoyment of the Real Property, and Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to Buyer; and
(cd) at its own cost and expense, made its own independent investigation respecting the Property, the Defeasance Security, the Interests Property and all other aspects of this transaction, and shall have relied thereon and on the advice of its consultants in entering into this Agreement, and Company Buyer, by proceeding with this transaction following the expiration of the Due Diligence Period, shall be deemed to have determined that the same are satisfactory to CompanyBuyer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR SELLER’S REPRESENTATIONS AND WARRANTIES IN SECTION 11.1 OF THIS AGREEMENT AND ANY WARRANTIES OF TITLE CONTAINED IN ANY INSTRUMENTS THE DEED DELIVERED BY SELLER IN CONNECTION WITH AT THE CLOSING AND SELLER’S COVENANTS HEREIN AND THEREIN CLOSE OF ESCROW (“SELLER’S WARRANTIES”), THIS SALE IS MADE AND WILL BE MADE WITHOUT REPRESENTATION, COVENANT, OR WARRANTY OF ANY KIND (WHETHER EXPRESS, IMPLIED, OR, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STATUTORY) BY SELLER. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, COMPANY BUYER AGREES TO ACCEPT THE INTERESTS AND THE OWNER’S INTEREST IN THE PROPERTY AND DEFEASANCE SECURITY ON AN “AS IS” AND “WHERE IS” BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION OR WARRANTY, ALL OF WHICH SELLER HEREBY DISCLAIMS, EXCEPT FOR SELLER’S WARRANTIES. EXCEPT FOR SELLER’S WARRANTIES, NO WARRANTY OR REPRESENTATION IS MADE BY SELLER AS TO FITNESS FOR ANY PARTICULAR PURPOSE, MERCHANTABILITY, DESIGN, QUALITY, CONDITION, OPERATION OR INCOME, COMPLIANCE WITH DRAWINGS OR SPECIFICATIONS, ABSENCE OF DEFECTS, ABSENCE OF HAZARDOUS OR TOXIC SUBSTANCES, ABSENCE OF FAULTS, FLOODING, OR COMPLIANCE WITH LAWS AND REGULATIONS INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO HEALTH, SAFETY, AND THE ENVIRONMENT (INCLUDING, WITHOUT LIMITATION, THE ADA). COMPANY BUYER ACKNOWLEDGES THAT COMPANY BUYER HAS ENTERED INTO THIS AGREEMENT WITH THE INTENTION OF MAKING AND RELYING UPON ITS OWN INVESTIGATION OF THE INTERESTS, THE OWNERS AND THE ENTITY DOCUMENTS AND THE PHYSICAL, ENVIRONMENTAL, ECONOMIC USE, COMPLIANCE, AND LEGAL CONDITION OF THE PROPERTY AND DEFEASANCE SECURITY AND THAT COMPANY BUYER IS NOT NOW RELYING, AND WILL NOT LATER RELY, UPON ANY REPRESENTATIONS AND WARRANTIES MADE BY SELLER OR ANYONE ACTING OR CLAIMING TO ACT, BY, THROUGH OR UNDER OR ON SELLER’S BEHALF CONCERNING THE PROPERTY, THE DEFEASANCE SECURITY, THE INTERESTS, THE OWNERS OR THE ENTITY DOCUMENTS, EXCEPT AS EXPRESSLY PROVIDED IN THE SELLER’S WARRANTIES. ADDITIONALLY, COMPANY BUYER AND SELLER HEREBY AGREE THAT (A) EXCEPT FOR SELLER’S WARRANTIES, COMPANY BUYER IS TAKING THE INTERESTS AND ITS INDIRECT INTERESTS IN THE PROPERTY AND DEFEASANCE SECURITY “AS IS” WITH ALL LATENT AND PATENT DEFECTS AND THAT EXCEPT FOR SELLER’S WARRANTIES, THERE IS NO WARRANTY BY SELLER THAT THE PROPERTY, THE DEFEASANCE SECURITY OR THE INTERESTS ARE PROPERTY IS FIT FOR A PARTICULAR PURPOSE, (B) EXCEPT FOR SELLER’S WARRANTIES, COMPANY BUYER IS SOLELY RELYING UPON ITS OPPORTUNITY TO HAVE CONDUCTED AN EXAMINATION OF THE PROPERTY, THE DEFEASANCE SECURITY, THE INTERESTS, THE OWNERS AND THE OPERATING AGREEMENTS, AND (C) COMPANY BUYER TAKES THE PROPERTY, THE DEFEASANCE SECURITY AND THE INTERESTS PROPERTY UNDER THIS AGREEMENT UNDER THE EXPRESS UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (EXCEPT FOR THE LIMITED WARRANTIES OF TITLE SET FORTH IN THE DEED AND SELLER’S WARRANTIES). WITH RESPECT TO THE FOLLOWING, COMPANY BUYER FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT FOR SELLER’S WARRANTIES, THAT SELLER SHALL NOT HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY OF ANY KIND AND THAT SELLER HAS NOT MADE ANY NO REPRESENTATIONS OR WARRANTIES OF ANY KIND:
1. THE CONTENT OR ACCURACY OF ANY REPORT, STUDY, OPINION OR CONCLUSION OF ANY SOILS, TOXIC, ENVIRONMENTAL OR OTHER ENGINEER OR OTHER PERSON OR ENTITY WHO HAS EXAMINED THE PROPERTY OR ANY ASPECT THEREOF;
2. THE CONTENT OR ACCURACY OF ANY OF THE ITEMS (INCLUDING, WITHOUT LIMITATION, THE ENTITY DOCUMENTSPROPERTY INFORMATION) DELIVERED TO COMPANY BUYER PURSUANT TO COMPANYBUYER’S REVIEW OF THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS AND THE CONDITION OF THE PROPERTY AND DEFEASANCE SECURITYPROPERTY; OR
3. THE CONTENT OR ACCURACY OF ANY PROJECTION, FINANCIAL OR MARKETING ANALYSIS OR OTHER INFORMATION GIVEN TO COMPANY BUYER BY SELLER OR REVIEWED BY COMPANY BUYER WITH RESPECT TO THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS OR THE PROPERTY AND DEFEASANCE SECURITYPROPERTY. COMPANY BUYER ALSO ACKNOWLEDGES THAT THE REAL PROPERTY MAY OR MAY NOT CONTAIN ASBESTOS AND, IF THE REAL PROPERTY CONTAINS ASBESTOS, THAT THE OWNER BUYER MAY OR MAY NOT BE REQUIRED TO REMEDIATE ANY ASBESTOS CONDITION IN ACCORDANCE WITH APPLICABLE LAW. COMPANY BUYER IS A SOPHISTICATED REAL ESTATE INVESTOR AND IS, OR WILL BE AS OF THE EXPIRATION CLOSE OF THE FINANCING CONTINGENCY PERIODESCROW, FAMILIAR WITH THE INTERESTS, THE OWNER AND THE ENTITY DOCUMENTS, THE DEFEASANCE SECURITY AND THE REAL PROPERTY AND ITS SUITABILITY FOR COMPANYBUYER’S INTENDED USE. THE PROVISIONS OF THIS SECTION 11.2 SHALL SURVIVE INDEFINITELY ANY CLOSING OR TERMINATION OF THIS AGREEMENT AND SHALL NOT BE MERGED INTO THE DOCUMENTS EXECUTED AT CLOSINGCLOSE OF ESCROW. ADDITIONALLY, COMPANY COVENANTS THAT, FOLLOWING THE CLOSING, OTHER THAN WITH RESPECT TO CLAIMS TO THE EXTENT ARISING FROM SELLER/s/RW BUYER’S BREACH OF SELLER’S WARRANTIES TO THE EXTENT THE SAME SURVIVE THE CLOSING OR ANY OTHER INDEMNITIES OR OTHER PROVISIONS OF THIS AGREEMENT THAT SHALL SPECIFICALLY SURVIVE THE CLOSING, COMPANY SHALL NOT, AND SHALL NOT PERMIT ITS AFFILIATES, TO COMMENCE ANY CLAIM, LITIGATION OR OTHER ACTION AGAINST SELLER, OR ITS AFFILIATES, FOR ANY CLAIMS ASSOCIATED WITH THE INTERESTS, THE OWNERS OR THE PROPERTY AND DEFEASANCE SECURITY, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS RELATING TO THE VALUATION, MARKETABILITY, UTILITY, OR PHYSICAL OR ENVIRONMENTAL CONDITION THEREOF. /s/ Authorized Signatory COMPANY'S INITIALS
Appears in 1 contract
Sources: Purchase and Sale Agreement (KBS Real Estate Investment Trust, Inc.)